Law and Morality

• Law = a set of rules + regulations that govern society and 'guide our conduct' (Twinings v Miers)
• Sir John Hammond - law = body of principles recognised + applied by the state in administration of justice
• Complience w/law = compulsory
• Governs all in society
  • Breaches -> sanctions + consequences
• Can be introduced/changed instantly

Main Theories of Law

• Legal Positivism
• Natural Law
• Salmond

• ANY LAW IS VALID, PROVIDED THAT IT IS MADE IN THE PROPER WAY (Wednesbury Unreasonableness)
  • Moral content irrelevant to validity of law
• Believe in seperation of law + morality

John Austin - Command Theory

• Argued law = command from sovereign
  • distinguishable from other commanders (e.g. God)
• Reinforced by availability of sanction
• Laws = orders backed by threats

HLA Hart

• Law = absolute + should be followed regardless of moral content

• LAW COMES FROM HIGHER MORAL AUTHORITY
• validity of man-made laws depend on compatibility w/higher moral authority
  • Law + morals coincide
• In the extreme, would say that legal rules that don't conform to moral standards shouldn't be obeyed

Thomas Acquinas - 13th Century Philosipher

• Natural Law from eternal law - implanted in us by God as part of our nature
• Eternal law governs everything in universe
  • Inc general moral rules of conduct in humans

Lon Luvois Fuller

• Defended positivism + Criticised Hart's view on positivism

• Law = 'the body of principles recognised and applied by the state in the administration of justice'
  • LAW = RULES RECOGNISED + ACTED UPON BY COURTS
• Laws = laws because courts enforce them
• Law = tool/instrument of justice

• Phil Harris definition - 'a set of beliefs, values, principles and standards of behaviour'
• Morality generally concerned w/beliefs -> often religious
• Everyone has moral code of acceptable/unacceptable behaviour
• Not enforced by the state
  • Instead through social condemnation
• Can be debated
• Changes in moral attitudes change gradually - e.g. view on homosexuality

• Both legal rules + morals = normative
  • Specify what should/should not be done + mark boundries of acceptable/unacceptable conduct
• Many rules + regs are both laws + morals

Salmond's Interlocking Circles

• Legal Deviation
  • SL
  • Driving Offences
• Moral Deviation
  • Tax Planning
  • Gamling - no contract (Appleson v Littlewood Pools)
  • Adultery
  • Swearing
• Coincidence of Law + Morals
  • Murder
  • Theft, burglary, robbery
  • ****

• Intersection w/coinciding of law + morals = primary law
• Traced back to ten commandments
• E.g. murder, R4PE, OAP
  • Shows close proximity of law + morals
    • Violate both
• Arguably comes from natural law perspective
  • Duty to life bestowed from higher authority

Marital ****

• Law slow to catch up w/contemporary moral standards
• R v R (1991) - HL ruled non-consensual sex between married couple = ****

Abortion

• Law influenced morals
• Private Member's Bill (David Steele) introduced to stop backstreet abortions
• Since passing, attitudes towards abortion have changed

Laws Serving Utalitarian Functions

• Traffic offences - Obstructing public highways
• SL - Callow v Tilstone
• Tesco v Natrass - mislabling goods for sale

Statutory Interpretation

• Cheeseman - court used literal rule to interpret 'passenger' and 'street'
  • held to be not guilty when it was morally wrong
• Fisher v Bell - Immoral actions found not guilty due to use of literal rule

Pluralistic Society

• Harder for law to take a moral stance - law made on principles, rather than morals
• Why moral issues such as adultery, infidelity, sex before marriage are not legislated against, as some would like to see

Matching Law + Morals

• Everyone has different moral codes + see diferent things as unnaceptable
• Law on abortion still contraversial
  • Women's groups say women should have right to choose, other's argue it's child's right to life

Bland - Limited Euthanasia

• Ruled that medical staff could withdraw feeding tubes of a patient who could breathe unaided but in persistant vegatative state
• Withdraw feeding allowed -> causing him to die
  • Many find this immoral - denies sanctity of life

R v Brwn and Others / R v Wilson

• Example of law being used to regulate what is morally acceptable

• 2001 Scotland Yard Raid of gallary showing photographer's naked children
  • Against Protection of the Children Act 1978
  • CPS decided not to prosecute
    • Demonstration of Salmond - LAW ONLY BECOMES LAW IN ADMINISTRATION OF JUSTICE

Gibson v Sylveur (1991)

• Foetus earings
• Argument 1) this has no place in moral society + conviction upheld moral values
• Argument 2) artist claimed this was a statement about the casual nature of abortions - would be morally wrong to not show it

R v Knuller (1973)

• Ds convicted of inviting readers to engage in homosexual acts
• For offence to succed, must be 'lewd,disgusting and offencsive'
• Attitudes towards homosexuality have changed
• Outraging Public decency (Offence D convicted of) still exists - LC's 'Conspiracy and Criminal Law Reform (1976)': offence should be repealed

• Depends on PoV
• Natural lawyers - yes
  • Aristotle + Thomas Acquinas believe that  (in conflict between man-made and divine law), divine law should be upheld
  • Law not simply uphold morality, but stems from it
• Positivists - no
  • Believe natural law is 'nonsense upon stilts'

Martin Luther King Jr

• Wrote letter discussing religious + moral foundations of law
• Talked about differences between just and unjust laws
• 'a just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law'
• Citing Thomas Acquinas - any law that degrades human personality = unjust

Criticism of natural law + MLK Jr

• WHOSE MORALS SHOULD BE UPHELD
  • Upholding one group's morals -> disrespecting another's
  • Conforming to mainstream -> infringing on belief's of those who don't fit mainstream
    • Seen in Brown, Bland, Gibson and Sylveur, Knuller
  • Leaves one conclusion -> law should take positivist approach + distance from morality

Criticism of Positivist Stance

• decisions in Cheeseman, Fisher v Bell = unsatisfactory - ignored citizens' rights to go about business w/out fear of prosecution

Gillick Complex - Positivist

• Whether child under 16 can consent to medical treatment w/out need for parental permission
• Mrs Gillick - this would encourage sex w/minor b/cos underage girls could get abortion w/out parental knowledge
• HL Dilema:
  • Parent consent = required -> increase in teen pregnancies
  • Parent consent = not required -> encourages underage sex
• Eventually, court took pragmatic (positivistic ) approach+ only concerned itself w/whether a minor is physically capable of consenting

Hamilton - Moral Outrage

• D convicted of secretly filming up women's skirts
• Law clear that this offence only satisfied if at least one other perosn could see act
  • Nobody but D saw it
    • Conviction still upheld: Ruling obviously reflecting moral values

Devlin

• Law w/out morality 'destroys freedom of conscience and is the paved road to tyranny'
• Law must respect/reinforce moral norms to keep society from unravelling
  • shared morality = necessary for survival of society

Criticisms

• 'Society' undefined + is a broad term
• 'common morality' = questionable -> society = pluralistic
• Little evidence society would unrevel

Hart

• warned against 'populism' - morality of few of population not justification for preventing people doing what they want
• Undesirable, Unnecessary, morally unacceptable to impose morality - infringes on rights of individuals

• Devlin's focus = majority's view at time
• Hart's view = more humanistic
• Law = competent at adapting to shifts in moral attitudes - Marriage (Same Sex Couples) Act 2013
• Progress will always offend shared moral beliefs of some communities
• Law + morality -> a very close relationship - seen in primary law
• Also areas where diverge + grey areas (abortions)
• Necessary to uphold moral values but done so minorities don't suffer