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The moral values of a society should be reflected in its law. Discuss the…
The moral values of a society should be reflected in its law. Discuss the extent to which the English legal system achieves a balance between law and morality (25 marks)
Jeremy Bentham (LP) - Utilitarian - 'Pleasure and pain' - greatest pleasure for the majority at the pain of the minority. Codified process of law would require fixed morality.
John Austin (LP) - Believes that law and rules should be commands, which are issued by an independent political society (parliamentary sovereignty). - Supports threats of punishment.
Other theorists (Joseph Raz, HLA Heart) says this theory fails to identify: a singular sovereign power, most legal systems apply rules that don't impose a sanction, can't have legislation that gives people no choice.
Joseph Raz (LP)- Beleives that the law has the right to tell citizens what they must do - the law is autonomous
Prof HLA Hart - (LP) The separation of law and morality, primary and secondary rules which combine to form the basis of a workable legal system.
The hart - Devlin debate. Response to wolfenden report, 'Its not the function of law to intervene with private life ...there is private morality and immorality ... which is not the laws buissness.
Does this apply to domestic abuse? And other issues that are immoral, but its private so how far should the law intervene
R v R 1991 - Finally became illegal to rape your wife - marriage no longer equaled consent.
Wolfenden report 1957 - It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.
The law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others
Hans Kelsen (LP) - A legal positivist who argues that morality is no part of law.
Thomas Aquinas - combines christian theology and catholic church tradition - Natural law, divine law. eternal law, human law
Lon fuller - laws purpose is to achieve social order through subjecting peoples conduct to the guidance of general rules by which they may themselves orient their behaviour.
8 Principles: Sufficiently general, publicly promulgated, prospective, minimal, free of contradiction, constant, possible to object, administered appropriately.
Hart critises fuller - morality can be both personal and individual or viewed as the collective morality of society as a whole.
Natural law - Validity of man made law depends upon the laws being compatible with a higher moral authority. (god) Based on morality and ethics.
Legal positivism - Laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority.
Sexual offence act 1967 - legalised homosexuality
Abortion act 1967
Policing and crime act 2017
Marriage act
Rule - a general norm mandating and guiding conduct.
Morality is a system of values and principles of conduct, held by one person or society.
Morality is normative or prescriptive - acceptable and unacceptable behaviour.
When society is composed to people sharing a common morality - one moral code was sufficient but as society has developed into multicultural, multi religious and multi ethnic unit which incorporates a wide range of views, customs and practises, one standard set of morals cannot directly reflect the needs of all citizens
Pluralist society.
Legal rules are strength-end when they mirror moral rules - justification and acceptance in mainstream society.
Religion and morality
Aquinas - Christian doctrine - people work out their moral principles and this should be reflected in man made laws.
Emily Durkheim - Factors not in natural or positive law: - Specialisation of labour, growing diversity within society, fading influence of religious belief. Functionalist
Characteristic of legal and moral rules: origins, commencement, enforcement, capacity for change, certainty of content, application.
Legal and moral rules are both concerned with setting standards, have similar language, both distinguish right and wrong, make links to duties and responsibilities.