Law and Morality

• Define Law

  'commands issued from a superior to an inferior ad inforced by sanctions' - John Austin
• Define morality

  'principles concerning distinction between right and wrong or good and bad behaviour... a system of values and moral principles.' -The Oxford English Dictionary
• Differences 1

  • Laws- made by formal institutions
  • Morals- made by a feeling in society
• Difference 2

  • Laws- Instantly made
  • Morals- developed and evolved over time
• Overlap

  law of murder and the moral derrived from the bible of 'thou shall not kill'
• Difference

  No law on adultery but many think it's wrong
• legal positivism

  Laws and morality are separate, a law can be valid even if deemed unjust. Laws are considered valid soley because they are properly enforced by legitimate authority.

  H.L.A Hart
• Natural Law

  Law and morality are inheritly intertwined, unjust laws aren't true laws. They are deeply connected and laws should uphold societal standards.

  Lord Devlin
• Hart

  -Supported JS Mill's utalitarian belief that individual freedom unless harms another

  -Law shoul set out maximum freedoms

  -Proposal of limited role of law enforcement of morality unless dominant moralities are eroded by a 'true threat' to the cohesion of society

  -example: freedom of contract and consideration does not need be sufficient but adequate (nestle)
• Devlin

  -morality is the cement of society, and must be enforced to maintain societal cohesion

  -objective test: if the reasonable man views conduct with 'intolerance, indignation or disgust' then it should be prohibited by law.

  example: restrictive sunday trading law.