Law and morals

• Intro - distinction between law and morals

  - Law comes from rules and there are sanctions for if these are broken

  - Fuller: purpose of the law is to achieve social order - law does this through rules that control behaviour

  - Rule is something that determines how we behave - some are referred to as laws when they are not actual laws, but there are sanctions if they are broken e.g. law of football

  - Morality is defined as 'a particular system of values and principles of conduct, especially one held by a specified person or by society'

  - Warnock: they cover what is right or wrong in certain situations

  - Morals can be personal, collective or held by society as a whole
• The distinction between law and morals - key changes between law and morality over time

  - Many of society's morals have been influenced by religion

  - Durkheim: society's morals have changed due to increased ethnic diversity and secularisation
• Assisted dying - AO3

  - According to the Campaign for Dignity in Dying, a British person travels to Dignitas (Swiss clinic) for help to die every 8 days. In 2022 33 people went, 44% increase since 2021

  - Regardless of what the law says, people who want to get euthanised will go and find another way of doing so - so it would be more efficient to legalise it in the UK

  - Legalising it would also make it accessible for poorer terminally ill people who want to end their suffering from a terminal illness, as they currently can't travel to Switzerland like other people

  - However, it is hard to distinguish between those who genuinely want to end their lives and those who were pressured e.g. by a family member so they can inherit wealth
• The relationship between law and morality - theorists

  - Natural law: The law is based on a higher moral authority so it is based on morals and religion. Aquinas: the law must conform to the higher authority (i.e. religion/God) to be valid

  - Legal positivism: The law should be made by a recognised legislative power and doesn't have to satisfy any higher authority. Bentham: There is no philosophy or ideology behind the law - it is written based on what society needs, not what morals say

  - Moral values can lead to developments in the law e.g. R v R (1991, made marital rape illegal)
• R v R - AO3

  - Judge in RvR stated that he found it hard to believe that the law once allowed a husband to force his wife to have sex with him - this change in the law shows how morals have changed and the law eventually catches up to this

  - This upholds public policy and protects women from being raped within marriage

  - Keeping the law up to date also created certainty on the issue which upholds ROL
• Legal enforcement of moral values - Hart/Devlin debate

  - Devlin: The fabric of society is dependent on shared, common morality, when people start to deviate from this, bonds of morality are loosened. Private acts need to be punished if they affected society's immorality. Recognised that individual freedom must be tolerated as long as it does not interfere with the integretiy of society, and used an obejctive test to determine this - any behaviour that the RM would find disgusting is to be prohibited by law

  - Hart's perspective: Society should not interfere with private acts. Accepted that the law should only be enforced when one of society's dominant moralities is being eroded by a true threat the the cohesion of society. In order for society to intervene, it must have created a nuisance

  - Brown and Others: Devlin's approach used

  - Donoghue v Stevenson: Neighbour principle is influenced by 'love thy neighbour' in Christianity
• Hart/Devlin - AO3


  - Hart's perspective is most appropiate for our society because society is diverse and pluralistic so it would be unreasonable to judge everyone by the same morals

  - Punishing private acts could also open the floodgates and give the courts an unnecessary workload + claims for private acts would also likely not work as it is hard to prove a private act happened
• Conclusion


  - Situation is still conflicted - judges still need to decide if they prioritise law or morals on a case by case basis

  - There cannot be a complete separation as many laws and morals are intertwined

  - As society becomes more diverse, Hart's perspective may become more prevalent in judge's decisions e.g. private acts stay private