Law & Morality

• Introduction & Paragraph 1 - Legal Positivists & Natural Law Theorists (A01)

  (1) Morality outlines unacceptable & acceptable behaviour in society. It can be collective or indvidual.

  (2) Legal positivists state that laws are valid rules that should be obey as long as they are made by a reocgnsied body in society. Even if they dont align with our moral compasses, they should be followed.

  (3) Natural Law is natyral law that is created by a higher authority. There is a hierachy, with law based being the pinnacle of law as a whole. To natural law theorists, the alw should coincide with natural law which is derived from religous teachings and should act as pricniples of behaviour to support human flourishing.
• Paragraph 2 - Legal Rules & Moral Rules (A01)

  (1) Legal rules can be traced back to a source, whereas moral rules are harder to trace back to a source. E.G The Theft Act could be traced back to 1968, but the immorality of theft can be traced back to religious teachings.

  (2) Legal rules have a date of commencement, whereas moral rules do not have a specific date or change e.g attitudes to pre martial sex.

  (3) Differ in sanctions e.g ostracism for breaches or moral rules and sanctions enforced via courts for legal rules breaches.

  (4) Legal rules can be changed through the courts, whereas the moral rules change gradually.

  (5) Legal rules have easily identifiable content e.g provisions of statutes but knowledge of moral rules will only be found through informal application.

  (6) Moral rules range in application from universal or communities, and legal rules apply to everyone.
• Paragraph 3 - Professor Hart & Lord Devlin (A01)

  (1) There are two opposing views from Professor Hart & Lord Devlin.

  (2) Lord Devlin enforced a shared morality approach and argued that society cannot exist without shared ideas on morality. Private immorality should be punished and this should be done using the law.

  (3) Professor Hart opposed this and argued that society should not interfere with private moral or immoral conduct. The courts told is not to protect people from themselves. He accepted that society should enforce some morality if there is a real threat to the cohesion of society.

  (4) These arguments have shaped the way that the UK approaches complex moral issues.
• Paragraph 4 - Pluralism & Morality (A03)

  (1) Pluralism means that the law cannot enforce morality as it would pass laws that echo everyone's morality.

  (2) The UK is pluralist and this could lead to tension as society may disintegrate without shared morality.

  (3) Laws aim to prevent the disintegration and so will try to reflect morality but this is difficult as law makers have to decide when the greater good of society should prevent an individuals view.

  (4) Morality is ever changing, and so laws should not be influenced by morality.

  (5) A hart approach could be seen with the Abortion Act (1967) as the criminalisation of abortion could be argued to be a threat to the cohesion of society. Women were dying from backstreet abortions.

  (6) The government did not want to legislate as it was a controversial matter, so introduced as a PMB.

  (7) Example of a legal rule as it is statute but not a moral rule as it is controversial accords Europe - not based on morals but was necessary.
• Paragraph 5 - Absence of Morality Leads to Harsh Laws (A03)

  (1) LP state that laws should be followed as long as they are made by a respectable body, but this can cause issues when examining laws in history e.g Nazi Germany Laws.

  (2) Seen in the Grudge Informer case where 2 women informed the Gestapo about negative comments made by their husbands about Hitler. They were sent to the Russian Front & deprived of their liberty.

  (3) Once legislation was repealed, they were prosecuted under the German Criminal Code but argued that it was lawful at the time.

  (4) This sparked debate - Hart supported the law, and stated that even if it was not moral, it was valid. (They had a democratic mandate). Fuller took a NL approach and stated that these should not have been followed. If NL had been followed, this deprivation would not have occurred.

  (5) This suggests the law should enforce morality to some extent as without it, cruel laws can be passed in valid ways.
• Paragraph 6 - Judiciary is Outdated & Will Enforce Old Views (A03)

  (1) Judges & Parliament are forced to confront moral issues but as the composition (+morals) are outdated, they should not be allowed to enforce morality.

  (2) Judges are criticised for being 'old, pale & stale' and their decisions become binding for courts below them, meaning a particular morality is enforced.

  (3) These can be seen in Shaw v DPP where he was convicted of conspiracy to corrupt public morals via a magazine advertising prostitutes - reflecting old views from a previously conservative society.

  (4) This can also be seen in R v Brown & R v Wilson. In Brown, two men were involved in sadomasochistic activities that were consensual, and neither party asked for medical help however the defence of consent was not granted by the judge.

  (5) In Wilson, the defendant (at the request of the wife) branded his initials on her buttocks. The defence was allowed and the defendant was acquitted.

  (6) The cases were only 3 years apart, and show the tension and old views judges hold.
• Paragraph 7 - Morality Provides Protection for People (A03)

  (1) Legal enforcement of morality can be seen in Rylands v Fletcher & is necessary for the protection of people.

  (2) This tort was created to provide a remedy in the original case. The Judge decided that there ought to be a moral responsibility for people who had not taken care and as a result caused damage to another.

  (3) The creation of the tort ensured that there were consequences and the victim could be compensated and receive a remedy.

  (4) This is a Devlin approach as a reasonable person would find it immoral that damage has been done by another and the victim is not compensated.

  (5) This is a positive example of the law enforcing morality, and protects people in society.
• Conclusion - Should the Law Enforce Morality?

  (1) The diverse & pluralist nature of the UK means that morality should not be enforced.

  (2) Durkheim pointed out that there is a lack of shared morality, and enforcing a view through the law would be unjust.

  (3) It is important to have some morality when creating laws, as seen with the Nazi Grudge Informer case, but morality should not take precedence over the law.

  (4) Moral values are ever-changing, and thus should not be enforced by the court system as this could lead to injustice (R v Brown).

  (5) The main aim of the law should not be to enforce morality.