LAW04 - Concepts Morality plan

Law and Morality

“Explain the meaning of law and morality. Discuss whether the law does and should seek to uphold moral principles and whether the discussion is still relevant today”

MEANING

Legal Rules

Moral Rules

Salmond (state), Austin (commands, power, penalties)

Harris (B V P SB)

DIFFERENCES

·         How created

·         Who by

·         Clarity

·         Time

·         How enforced

Comparing between the two.

Homosexuality

Changed in 1967 Sexual offences Act act to legal – commenced immediately = swift law

Originated in 1533 Buggery Act.
Oscar Wilde S61 OAPA 1861

Vs long term moral changes

1950s shift freedom, liberty, autonomy
Wolfenden Report 1957

Human Rights Act 1998 (2000)

Art 8 (private) and Art 14 (discrim)

Partnerships recognised by law in Civil Partnerships Act 2004

Then the Marriage Act 2013 (2014)
but religious leaders’ refusal

STILL

2012 guesthouse. Bull v Hall.
2017 bakery.

UNRELATED

No good Samaritan = bible teaching + love thy neighbour

But omissions + egs.

SLOs – no trial, no defences, no assessment of mental elements = immoral, not respecting human rights – ECHR says is. Yet often regulatory eg parking on yellow lines = against law but not immoral – need no moral context bc quasi crimes etc. Judges don’t like them due to no morality?

COINCIDENCE

Many legal rules based on moral rules – esp. old ones, 10 commandments + theft + murder – in Howe (duress and murder) and Dudley v Stephens (cannibalism on boat) mentioned ‘sanctity of life’.
BUT – purely utilitarian = greatest good

Judges can change law to reflect views of society – practice statement 1966 HoL change past decisions to modernise law – should be used when it is ‘right to do so’ and to reflect changing views.
EG **** your wife, moral views influence law – R v R 1991 – judges tried to eradicate a “morally repugnant law”.

Changes in morals can influence legislation - 1950/60s society more liberal views eg personal autonomy = legislative changes – homosexuality (see earlier) and Suicide Act 1961 decrim attempted suicide.
BUT
Still morally unacceptable to assist suicide. Euthanasia

Changed? – 2007 Survey = 80% believe should be legalised (with doctor involvement)

No further legislation. Pretty, Purdy – high profile campaigns. Max sentence 14 years.

 Law can change public opinion and morals eg DEATH PENALTY – Howard League for Penal Reform 1949 persuaded gov to set up commission on death penalty and persuaded them that it should be abolished – THEN had to persuade public – they were for it. Campaign + miscarriages of justice eg Derek Bentley = public opinion to change. **

AIM

Both want to impose standards of behaviour/conduct. Without = break down of society. Harris – legal rules and moral rules exist…