Law and morality

• Law


  Rule: something that determines the way we behave
• Moral rules


  Rules we submit to voluntarily
• Laws


  Rules which are enforceable
• Morality


  A particular system of values and principles of conduct, especially one held by a specified person or society
• Morality is 'normative' or prescriptive – specifies what ought to be done and outlines acceptable and unacceptable behaviour
• Morality is often influenced to some extent by religious beliefs
• Religious texts provide a moral code
• Morality is not always black and white
• Moral attitudes change over time
• Common morality


  One common view on what is or is not moral
• Possible factors contributing to breakdown of common morality (Emile Durkheim)


  • Increasing specialisation of labour
  • Growing ethnic diversity within society
  • Fading influence of religious belief
• Pluralistic society


  Many cultures within one society
• More diversity = diversity of moral outlook
• Essential core of society is based on a shared morality – without this, society disintegrates
• Law aims to prevent the disintegration of society, so will reflect morality
• Characteristics of legal and moral rules

  • Origins
  • Date of commencement
  • Enforcement
  • Ease of change
  • Certainty of content
  • The way rules are applied
• Origins of law


  Generally possible to trace legal rules back to a source
• Origins of morality


  • Religious texts form the basis for many individuals' moral outlook – can inform attitudes towards issues and how to treat others
  • Upbringing
  • Peer views
  • Conscience
  • Education
• Date of commencement of law

  Generally have a start date
• Date of commencement of morality

  • More complicated
  • Not possible to fix a date on when a person's particular morality came into being – develops over time
• Enforcement of law


  • Enforced by the courts following a set procedure
  • Appropriate sanctions such as criminal penalties or civil damages
• Enforcement of morality


  • Usually enforced through public disapproval through the media or privately through social ostracism
  • Less enforceable than legal rules, but easier to hold different views about them
• Ease of change of law

  • Legal rules relatively easy to change
  • Parliament has authority to pass a law, however is usually slow to respond to change
  • Court have power to change a rule but only when a case comes to court
• Ease of change of morality


  • Change gradually, over decades or centuries
  • Often only aware of change in hindsight
• Certainty of content of law


  Normally possible to discover precise content of legal rules through published statutes, delegated legislation and law reports
• Certainty of content of morality

  • Less clear
  • Knowledge can only be acquired informally and in the setting where they are applied e.g. the home
• Application of legal rules

  • Generally apply to everyone in a situation covered by the law
  • Ability of everyone to access the law
• Application of moral rules

  • Range in application
  • Some universal adoption, some only marginal acceptance
  • Different views taken by different individuals and sectors of society
• Legal positivism


  • Belief that laws are valid where they are made by the recognised legislative power in the state
  • They do not have to satisfy any higher moral authority
• Utilitarianism


  Philosophy that the purpose of morality is to maximize overall happiness or well-being
• Jeremy Bentham believed that the philosophy of law should be concerned purely with what law is
• Just because an individual or group might find a law offensive, this does not affect its validity
• Morality is irrelevant to law according to legal positivists
• John Austin's command theory of law


  • Laws are commands issued by the uncommanded commander (the sovereign)
  • Such commands are enforced by sanctions
  • A sovereign is one who is obeyed by the majority
• HLA Hart's legal positivism


  • Insists on the separation of law and morality
  • Two categories of rules – primary and secondary – which form the basis of a workable legal system
• Hans Kelsen's legal positivism


  Morality is no part of law, it is neither good nor bad
• Natural law


  The validity of man-made laws depends upon the laws being compatible with a higher, moral authority
• Saint Thomas Aquinas' natural law

  • Four kinds of law: Eternal law, Natural law, Positive divine law, Positive human law
  • Man-made law must conform to natural law as it comes from a higher authority
• Lon Fuller's natural law


  • Law serves a purpose: to achieve social order through subjecting people's conduct to the guidance of general rules
  • Law must satisfy the principles which make up an inner morality of law – 'procedural' version of natural law
• Pluralism


  A diverse society where the people in it believe different things and tolerate each other's beliefs