Law and morality

• Define law

  • Very difficult to provide an adequate definition of law, working definition may be "a set of rules and principles created and enforced by the state"
  • Possible to describe law as the body of official rules and regulations, found in constitutions, judicial opinions and used to govern a society
  • Two theories to consider- Legal Positivism and natural law
• Legal Positivism- defining law

  • believe that law is a legal rule, which if made correctly is valid no matter of it's content
  • emphasises the separation of law and morality and is binding no matter the morality of it's content
  • Until a law is changed, no matter if you disagree with it, it must be obeyed
• Jeremy Bentham- Legal Positivist

  • proposed the utilitarian principle which suggests that the law should create "the greatest happiness of the greatest numbers"
  • had little time for natural law
• John Austin- Legal Positivist

  • pupil of Bentham
  • law is the command of the sovereign whom the population if in the habit of obeying and is backed by the threat of punishment
• H.L.A Hart- Legal Positivism

  • suggested that there was 2 categories of law, primary and secondary rules
  • primary rules impose legal obligations or grant powers such as the ability to make and enforce against others
  • secondary rules are concerned with the operation of primary rules such as the official recognition given to types of law (acts of parliament and precedent), the methods of which law can be made or unmade and how disputes can be settled
• Legal Positivism- summary

  • do not accept any requirement for law to be based on morality and the two are entirely separate
• Natural Law

  • holds that law and morality are connected
  • if legislation is not moral, then it is not law and has no authority
  • man-made law can only be valid if it accords with the higher law and it should not be bonos mores (against good morals)
• Thomas Aquinas- Natural law

  • law without morality is a "perversion of law" and there is an essential connection between law and morality
  • "an unjust law is not a true law" and if it is not true law we need not to obey it
  • he refers to laws based on the on the Ten Commandments (murder and theft) and other Christian principles
• Thomas More- Natural law

  • bound by a higher law (gods law) to a greater extent than the man-made law
  • he also refused to accept King Henry VIII and parliament could overrule the Pope's authority by declaring Henry the head of the Church
• Morality

  • "conforming to acceptable, common standard and principles"
  • "A religious code of conduct"
  • "A claim people would think is justified but not necessarily supported by law"
  • Matters that may be included: Public nudity, adultery, telling lies, prostititution and organ donation for money
• Relationship between law and morality

  • talk ab cases of when morality is and isnt involved in the law
• Morality is incorporated into the law

  • Most of the moral code within the Ten Commandments is written into the law
  • "thou shall not kill"- crime of murder
  • "thou shall not steal"- Theft Act 1968
  • "thou shall not bear false witness against your neighbour"- The laws of fraud, misrepresentation and defamation
• Legal rules with no moral code

  • Parking restrictions
  • Speeding
  • Planning regulations
  • Health and safety regulations
  • all of these are strict liability offences
• Moral rules with no legal enforcement

  • Adultery
  • "good Samaritan"
  • Pornography
• Attempts to make new laws out of moral issues or using existing laws in cases involving moral issues

  • R v Brown and others- gay masochists
  • society was bound to protect itself from violence so they could not appeal
  • Shaw v DPP- "ladies directory"- guilty of "offence of conspiracy to corrupt public morals"
  • Knuller v DPP- adverts aimed at homosexuals, guilty of "Outraging public decency"
  • R v Gibson- earrings out of human foetuses
• Changing in moral values that lead to developments in the law

  • Legal rule in the Hale's Statement of 1736 states that a man cannot be guilty of the rape of his wife, as she 'consents' through marriage
  • This was overturned in 1990 with R v R
  • With abortion becoming more and more accepted in society, the Abortion Act 1967 overturned its illegality in the Offences Against the Persons Act 1861
• Law being made to shift the moral views of society

  • The Race Relations Acts 1965, passed to counter a prevalence of discrimination of minorities
  • Sexual Offences Act 1967, legalised homosexual activity between men over the age of 21
• The issue of the law on euthanasia

  Definition:

  • "the bringing about of a gentle and easy death in the case of incurable and painful disease with the consent of the victim"
• Legal rule on euthanasia

  • it is forbidden in English law, any person who assist a person in the way can be prosecuted with murder, but most likely attempted murder
  • R v Cox, administered a lethal injection, he was reported and then prosecuted with attempted murder, the prosecution claimed they could not be certain if the injection killed V, therefore it could only be attempted murder and he was given a 12 month suspended sentence
• Moral arguments for and against legalising euthanasia

  • Pretty v DPP- woman suffered from a motor neurone and faced imminent death, she wanted her husband to kill her but the DPP refused to not prosecute him after the fact, and she went to the HOL claiming her human rights were infringed
  • HOL rejected her case and held that "mercy killing" was in law killing and there was no breach in her human rights
  • Her case was then taken to the ECHR, but they also rejected her case saying it was an issue for the member state
• arguments for and against- continued

  • February 2010, the DPP issued new guidelines where Keir Starmer released a range of factors which might influence whether they would face prosecution
  • Include whether the victim reached a "voluntary, clear, settled and informed" decision
  • That the suspect acted "wholly compassionately" and not for a financial reason
  • however, stopped short of saying he would offer guarantees as the individual circumstances of each case would need to be investigated
• Should the Law enforce Morality?

  • three main philosophers on the topic
  • John Stuart Mill
  • Hart
  • Devlin
• John Stuart Mill

  • developed the "harm to others" principle
  • " the only purpose for which power can be rightfully exercise over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant"
  • Believed that the law should be used not to uphold morality but to prevent harm to citizens
  • Laws which show this is murder, manslaughter and non-fatal offences and the decriminalisation of homosexual activity between two consenting males
• Lord Devlin's theory

  • recognising morality is essential to society's existence and that individual liberty and freedom should be limited in order to protect the fabric of society
  • whole theory is based on the premise that there is an "objective morality" and that if the average man would feel disgust with conduct, then that conduct should be banned
  • law without morality "destroys the freedom of conscience and is the paved road to tyranny"
  • criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling
  • an example of this is the defence of consent in non-fatal offences
• Harts theory

  • he warned against the dangers of "populism" and why the conventional morality of a few members of the population be justification for preventing people doing what they want
  • He developed Mill's harm to others principle to include physical harm to oneself
  • argued that the law should only intervene to prevent harm to others and harm to oneself
  • Laws including this may be those preventing the consumption of prohibited drugs, preventing methods of prostitution
• Hart-Devlin debate

  • Devlin's view is pragmatic and focused on the majority rule where as Harts is more humanistic and individual