Law and morality

• Law

  Law compromises rules that are created and enforced by societal or governmental instituitions to regulate behaviour. Characterised by its formal and mandatory nature
• Law - EG Theft Act 1968

  Formally enforce: Laws are enforced through formal institutions such as courts and police

  Mandatory: Compliance with the law is not optional. Obliged to follow legal mandates
• Morality

  Concerns beliefs about what is right and wrong, goof and bad. Beliefs are often derived from societal norms, cultural practices or individual values
• Morality

  Informally enforceable: Enforced through social norms and pressures then legal mechanisms

  Beliefs and morals: Individual or collective norms considered ethical or moral behaviour. Shaped by cultural religion or philosophical influences
• Relationship between law and morality (R v Brown) and (Re A)
• 2 Relationship between laws, morality and society

  Durkheim - In complex socities like ours it is impossible to find a single set of moral values acceptable to all. Basic values might be shared but details may differ

  Changes in societal values and technological advancements
• Moral issues changing overtime Civil Partnership 2004 and Consumer Rights Act 2015
• Pluralistic = A pluralistic society celebrates and protects diversity, allowing for multiple cultural traditions, beliefs and lifestyles to coexist respectfully
• Challenges of pluralism, law and morality

  • Balancing conflicting rights and beliefs among diverse groups
• 3) Academic theories and debates
• Natural law theory

  Laws must align with a universal moral order to be legitimate

  • Thomas Aquinas
  • Thomas Hobbes
• Positivism theory

  Laws are valid if created through proper procedures, regardless of moral content

  • Jeremy Bentham
  • HLA Hart
• Natural law: Aquinas - Non secular relgious

  Four types of law

  Eternal law - The overarching order of the universe established by God
• Natural law: Aquinas - Non secular religious

  Four types of laws:

  Divine law - Revealed through scripture, guiding humans to their ultimate end
• Natural law: Aquinas - non secular religious

  Four types of laws:

  Natural law - Participation in the eternal law by rational creatures, discoverable through reason
• Natural law: Aquinas - non secular religious

  Four types of laws:

  Human law - Man made laws that should derive from natural laws
• Aquinas

  • Morally known what is right and wrong
  • Believed valid law must align with the natural law, reflecting God's divine wisdom and order
• Aquinas

  Purpose of law: Guide humans behaviour towards the common good and away from evil
• Aquinas

  Moral basis: Laws are inherently moral; they are not just above governing behaviour but about guarding it towards virtue
• Aquinas

  Role of reason: Human beings can discern natural laws through the use of reason, understanding fundamental moral principles that govern human actions
• Natural law: Hobbes - Secular (Non - Religious)

  What we want and what we don't want
• Natural law: Hobbes - Secular (Non - Religious)

  State of Nature

  • Hobbes depicted a pre - societal 'state of nature' characterized by chaos and the 'war against all'
  • Individuals natural rights to do anything to preserve their own liberty and safety
• Natural law: Hobbes - Secular (Non - Religious)

  Social contract (survival)

  • Escape the state of nature, individuals collectively agree to form a society governed by a sovereign
  • Transferring their individual rights to the sovereign in exchange for protection and order
• Natural law: Hobbes - secular (non - religious)

  Social contract (survival)

  • Agreement forms the basis of civil laws and the authority of the sovereign
• Natural law: Hobbes secular (non - religious)

  Role of reason

  First rule - Try to make peace. Since living in constant fear is awful, seeking to live peacefully is logical

  Second rule - We then give up some freedoms, creating rules everyone can live by for safety and cooperation
• Positivism: Bentham

  Separation of law and morality

  Insisted on a clear distinction between law (what is) and morality (What ought to be), challenging the idea that laws inherently reflect moral values

  Cares about impact of law
• Utilitarian (unity) principle

  Central to Bentham's philosophy is the principle of utility, which suggests that the rightness of wrongness of an action is determined by its contribution to the maximisation of overall happiness or pleasure
• Utilitarian (unity) principle

  Laws - Judged by effectiveness - not by consistent notions of morality
• Positivism: HLA Hart

  Critique of legal positivism predecessors

  Hart critiqued earlier positivist theories, including Bentham, for oversimplifing the nature of law the nature of law as it is (de facto in fact) and law it should be (de jure be right)
• Primary and secondary rules

  Hart introduced the concept of primary and secondary rules

  • Primary rules dictate behaviour
  • Secondary rules provide the structure for creating, changing, and interpreting primary rules
• Primary and secondary rules

  Hart introduced the concept of primary and secondary rules

  • Most critical secondary rule is the 'rule of recognition' a standard used by society to identify valid legal rules
• A legal system exists when a society accepts both primary rules of obligation and the secondary rules that validate them
• Hart - Fuller Debate

  Hart (Legal positivist)

  • Hart emphasised that law is defined by social rules by recognised by authorities, independent of moral content
  • legality of law depends on its adherence to established procedures, and not its moral value
  • Clear separation between law and morality
• Hart - Fuller Debate

  Hart (Legal positivist)

  • Morally repugnant laws, like Nazis can be legally valid if they follow the system's recognised procedures
  • moral failure does not strip them of legal validity
• Hart - Fuller Debate

  Fuller (Natural law perspective)

  • Argued against Hart's strict separation, saying that moral law must align with moral principles to be valid
  • Introduced 'inner morality of law' - suggesting that laws must be clear, consistent and congruent (in agreement with something) with their actions to effectively guide behaviour and serve the common good
• Hart - Fuller Debate

  Fuller (Natural law perspective)

  • Nazi's law moral bankruptcy and failure to guide behaviour according to the inner morality of law rendered them invalid
• Hart - Devlin Debate

  Devlin (Morality's defender)

  • Argued that society's moral cohesion is as vital as its physical safety
  • the law has a role in enforcing moral standards to preserve social order
  • Believed community's collective morality should guide the limits of individual freedom