law and morality

• Legal rules - come from an act of parliament / judgement 
• Moral rules - influenced by religion, upbringing and education / social group 

  Moral views evolve over time, difficult to fix a date when they come into being 

  E.g. homosexuality views and views to women have changed
• Moral views less certain
• Legal rules - legally binding look into acts of parliament and DL reports. 
• Natural law theory - moral if legal, law and morality linked 

  Plato, Aristotle, Aquinas, Kant - true law is derived from moral principles that come from : religion (scripture), reason (logical reasoning), nature (important fundamental principles can be observed in nature)
• Positivists- laws are valid if made by what society considers to be moral 

  Bentham, Hart

  Whether laws are legitimately made 

  A law is a valid law if a recognised human authority recognises it to be law what matters in defining law is whether it was made by appropriate people and whether agreed procedures for making law are followed by those people 

  Evil laws not okay 

  Influenced by act utility + bentham for whether a law is okay “greatest pleasure”

  A bit like logical positivists a posteriori experiences valid but religious faith being reasoning is meaningless.
• Natural law theory - Aquinas through natural law came from God - just like in NML

  • Fuller (but maybe just stick with what u know) 
• Positivism - Hart saw law as its validity being based on following the correct procedure 

  Most laws reflect our social norms and morals

  However doesn't mean they accept immoral laws 
• Hart - Devlin debate

  Wolfenden report 

  Explored if homosexual acts in private should be illegal 

  UK one of the first countries to do this 
• Devlin - law should be based on morality 

  Enforce a shared morality by society

  Hart- law should allow freedom of choice 

  Should mind its own business 

  Law should only interfere if potential harm to others 
• Brown - worried about allowing sadomasochism due to slippery slope and allowing degrading behaviour as u sending a bad message out to society and therefore harming society? 
• R v BM

  Problems with libertarianism - is there a risk of harming society with e.g. legalising euthanasia because people have consented does it demean life of people who are critically disabled? Do they feel they have no choice but to feel they should be euthanized? 
• R v Tony Nicklinson case 

  Slippery slope scaremongers argument - Helga Kuhse 

  The law can keep this controlled there will be long processes within the courts to protect people 

  People will likely kill themselves regardless do they not deserve to die with dignity 
• Suicide act 1961  - Makes suicide legal 

  Freedom of choice right to die was Nicklinsons argument - libertarian argument
• Withdrawing treatment is considered different but requires a court order 

  R v Bland 
• Lord Falconer difference between taking your own life vs taking someone else's life 

  Thought suicide was a private choice, but euthanasia public act that damages society 
• *Nicklinson case shows difficulty to draw line of whats a public choice and harms society 
• Natural law- god gives life only he has right to take it away 
• Modern natural law theorist - fuller 
• Natural law theorist would say for law to be valid it should reflect morality 
• Positivists and Hart law is valid when made by proper people in proper way law and morality are separate concepts

  Didint’ believe in immoral law 

  But the way you obey law doesn’t mean it is moral you may have to still obey and immoral law 

  Thought most laws had to be moral tho 
• Moralists -devlin - law should uphold society's morals believed decriminalising homosexuality would harm society
• Libertarian views - Hart - enforcing moral values were unnecessary supposed to enforce individual freedom and choice as long as uno what ure doing, homosexuals not harming anyone law shouldnt be involved 
• Moralism issue - morality is subjective on subjects .e.g. Homosexuality
• Problem with libertarian - when does a private choice become damaging to the public 

  Seems easy to say you can have a right to die an informed decision but lord falconer and disability ppl thought about slippery slope etc.

  Helga kuhse