Theories on Law and Morality
Positivism
Subjectivism
Natural Law
Relativism
Pluralism/Diversity
Hart-Devlin Debate
"The theory that the law is based on the idea that laws are valid when they are created by a recognised legislative authority in the state, they do NOT have to represent a higher moral law"
John Austin: Developed the Command Theory of Law
Jeremy Bentham: The philosophy of the law should be based on purely what the law is - "A law which exists is a law, though we happen to dislike it"
Hart: Believed law and morality should remain separate. Believed there were 2 categories of laws:
Commands are enforced by sanctions
The sovereign is the one who is obeyed by the majority
Laws are commands issued by an uncommanded commander - the sovereign
Primary Rules: Imposes legal obligations of grants powers
Secondary Rules: Concerned with the operation of primary rules. There are three specific principles:
The rule of change: identifying how legal rules should be formed, amended and repealed
Rules of adjudication: enable the courts to settle disputes and interpret the law
The rule of recognition: setting criteria for identifying rules
Thomas Aquinas: Developed Aristotle's philosophy in a Christian context. He came up with 4 types of law as well as three main pillars of morality
Lon Fuller: Rejected both positivist and religious viewpoints on the law. He believed the law's purpose was to "achieve social order [by orienting] behaviour". He set out 8 requirements of what the law should be:
"A moral theory of Jurisprudence, which maintains that law should be based on morality and ethics"
Positive Human Law: Heavily linked to natural law principles
Preventing Unnatural Death: humans have natural tendancy to keep on living, so unnatural to provoke death (e.g. Euthanasia)
Positive Divine Law: Commandments from God (e.g. 10 Commandments)
Right to life/Protection of Children: Humans have natural tendency to mate and bring up their young.
Natural law: A moral code which all human beings are inclined towards
Worshipping God/Living in harmony: Natural law states that the ultimate purpose of humans is to worship God
Eternal Law: Law which is beyond human control (e.g. laws of gravity)
Promulgated (published)
Prospective (set out in advance)
In existence
Clear and concise
Not contradictory
Not requiring the impossible
Constant
Adhered to by the state
Morals are determined by the general consensus in society but can differ between individuals
E.g. in 1866 men were often expected to "control" their wives through the use of force whereas in 2014 Clare's law was established to protect women from domestic abuse.
Morals change over time and between places
Emile Durkheim: identified 3 factors which contribute to the break down of common morality
growing ethnic diversity
fading influence of religious belief
Increasing specialisation of labour
View morals as a matter for individual choice
"A pluralist society is one in which there are a diverse range of people from a variety of different cultures. In this society, everyone tolerates each others beliefs even if they don't match their own"
The UK is a very multicultural society - this means there a vast range of opinions on 'moral' ideas
Tyranny of Majority: The idea that in a democracy the views which are the most popular will be inevitable forced onto minorities even if they do not agree. However, in a representative democracy MPs have a duty to take into account minority viewpoints.
ECHR: A10 of the ECHR protects individual rights to freedom of expression and opinion. For example in the case of Open Door and Dublin Well Women v Ireland 1992. A8 also protects right to respect for private and family life, as demonstrated in the case of Evans v UK 1992
Conscientous Objector: these are people who morally oppose the view/law supported by the majority of society and are willing to face legal punishment or even be shunned in society for doing so.
R v Lyons 2011: The D joined and worked in the navy for 5 years as a medic. After the 5 years he was told he was being stationed in Afghanistan. He refused on the basis he fundamentally disagreed with the war. He was convicted of insubordination as the Courts Martial held that conscientious objection was not a defence.
Hart
Devlin
Legal positivist who believed laws and morality should remain separated
Agreed with JS Mill's harm principle, but took a more paternalistic view regarding the law protecting against self-harm
The law should only interfere with individual morality when one of society's dominant moralities is being eroded (e.g. right to life)
Moral infringements should not always lead to punishment for 3 reasons
It seriously erodes freedom of speech to do so
Setting moral boundaries on things such as homosexuality can actually decrease human happiness - inconsistent with utilitarianism (But consider rape etc.)
Punishment by its very nature inflicts harm on the alleged perpetrator
The law should interfere in order to tighten the bonds of morality in society. Morals are the fabric of society so if morality is lost, then society will disintegrate.
"Without shared ideas on politics, morals and ethics, no society can exist"
Society should be able to defend itself against 'immoral' behaviour as it's structure depends on morality.
There should be an objective test to establish when the law should step in to uphold common morality, which contains 3 elements.
Privacy should be respected
Law should only interevene when society won't tolerate an action
The law should set out a minimum standard to be followed
The relationship between law and morality
Coincidence
Cases: St Georges NHS Trust v S 1998/R v Wilson 1996/Re A 2000
Cases: Shaw v DPP 1961/R v Gibson 1990/R v Brown & Others 1993
Influence
Setting the standards
dictating the way people should behave
Distinguishing between right and wrong
Establishing duties, obligations & responsibilities
Some laws have strong moral basis (e.g. common law offence of murder compatible with right to life)
Some laws seem to have little to do with morality (e.g. imposing a fine for parking on a double yellow line late at night - just to make money)
Ideally morals and laws shift together in synchronisation (e.g. Sexual Offences Act 1967 only 10 years after Wolfenden report in 1957)
However, morals often are way ahead of what the conservative legal system is willing to legislate on (e.g. Draft Criminal Code in 1989 on Offences Against the person, still no movement)
Agrees more with Mill's critic Sir James Stephens who states that Mill's harm principle is incorrect as acts of self-harm or indifferent to acts of harming others.