Nature of law

• Morals


  Set of beliefs and values, principles affecting standards of behavior
• Morals


  • Change over time, not shared by all members of society
  • Many based on dominant religion in society (e.g. Thou shall not kill)
• Laws


  Set of rules recognized and applied by the state, a command made by a sovereign power
• Laws


  • Pinpoint day laws created (e.g. TA68, 1 Jan 1969)
• Laws and morals


  Overlap in some cases
• Relationship between laws and morals

  Sir John Salmond described as 'two intersecting/overlapping circles'
• Overlap between laws and morals

  • Many long established legal rules have moral connections (e.g. laws on murder and theft)
  • 10 commandments (Bible) 'Thou shall not steal' reflects TA68
• Changing moral views


  Changes in law (e.g. legalization of homosexuality)
• Substantive law


  • Outraging public decency (R v Gibson)
• Law changed by judges

  • R v R - marital rape, change in law as they recognized public morality had changed
• Public morality


  Can be influenced by law reform, like drink driving has moral issues as it endangers life its illegal
• Increasingly difficult for law to enforce morality
• Parliament struggle to pass laws that reflect morals and beliefs of everyone in society
• Pluralist society


  Contains wide range of moral standards and values, hard to please everyone
• Private member bills


  • Pass controversial laws (e.g. Abortion Act 67) to avoid parties revealing their controversial views on issues
• Devlin's paternalistic approach


  • Law should set the basic standard or morality and that society should aim for higher standards
• Hart's utilitarian approach


  • Law shouldn't enforce morality as it would infringe a person's autonomy, describing such interference as unnecessary, undesirable and unacceptable
• Cases where one party holds a religious viewpoint courts don't agree with


  • Re A (Confined twins separated against parents will), Re S (Pregnant caesarean against her will)
• Decisions on cases with religious viewpoints are controversial as judge is making a moral decision</b>
• Natural law theorist St Thomas Aquinas


  Believed law and morals came from God
• Fuller's 8 requirements for a valid legal system


  In existence, published, understandable, consistent
• Disagreement between Hart and Fuller

  Laws made by German Gov during war were still valid (Although immoral, they were legally enforceable) according to Hart, but Fuller argued they went against natural law and were never actually valid
• Law does try enforce morality in many cases
• Morals are constantly changing with each generation, the law sometimes fails to keep up
• There cannot be a complete separation between law and morals as many are intertwined
• Justice


  Idea of fairness or just behavior or treatment
• Law


  John Austin's definition: 'command made by a sovereign power'
• Fairness


  Can mean different things; 'to each according to his needs, merits, works, rank, legal entitlement'
• Types of justice


  • Distributive
  • Substantive
  • Procedural
  • Corrective
• Distributive justice


  The fair allocation of benefits and assets, not based on equal shares but based on the contribution made by each individual
• Corrective justice


  Applies when distributive justice is interrupted by wrongdoing and involves punishing the offender and giving compensation to the victim
• Rawls' theory of justice

  • Placing people in the original position behind a veil of ignorance, a system chosen by these people would be in the system they were creating
• Marx's view on justice in a capitalist society

  • Impossible for a capitalist society to have any liberties and features that would make it 'just' because laws are made to uphold the interests of the ruling class
• Nozick's theory of justice

  • Society could only be just if people were free to enjoy their wealth without state interference (e.g. tax)
• The position in Britain fulfills the criteria that Rawls sets out at least in respect of guaranteeing fundamental rights and freedoms
• Examples of the government losing HR cases to illustrate the system allows for mistakes to be put right and injustices corrected

  • UK v Pinochet
• Although substantive justice is achieved because the basic rules are fundamentally fair, there are many examples where there appears to be a lack of procedural justice
• Examples of lack of procedural justice

  • Stephen Lawrence case - issues with procedure throughout, arrested friend with no evidence, institutional racism in the police force, senior police officers obstructing evidence
  • Miscarriages of justice in the 1980s like the Bridgewater 4, Birmingham 6 involving the IRA - discrimination issues, appeals were eventually successful due to a lack of evidence or lack of due process by the courts
• Juries struggle to uphold features of democracy (e.g. fair trial) - jury equity, jury knobbling and jury prejudices issues that make some trials unfair
• Appeals system often cited as good example of the guardian of both procedural & substantive justice in criminal/civil law as it enables those who do not believe justice has been achieved to pursue further action