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Moral views can
change over time |
In 1934 it was
implied in a film about Russia that Rasputin had raped the Princess
Youssoupoff. In 1934 it was necessary to protect her reputation by going
to court (Youssoupoff
v
MGM Pictures
(1934) CA).
Would she need to do so today?
In the USA opium
used to be used by the middle classes and thought not to be morally wrong,
but when it was criminalised by the
Harrison Act 1914
attitudes changed when the hardened users were perceived as low-life. It
then was morally unacceptable.
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Definitions
Law requires a
definition, but morality can be many things.
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Justice is an aspect
of morality
Justice is concerned
with how classes of individuals are treated. Equality before the Law is
considered vital in modern societies. Certain classes of person such
as MP's and judges have greater immunity regarding their freedom of
speech. And police officers have greater powers than ordinary
subjects. To prevent abuse by officials of these privileges
there are extensive rules of behaviour.
Law and morality
compared
|
Law |
Applied by
Courts |
A system of
social norms |
Applied by
"Society" |
Morality |
|
Recognised by
Society |
Forces you to
do things |
Backed up by
threat of prison |
Backed up by
social condemnation |
It might force
you to do a thing |
Individual
principle or preference |
Issues of law and
morality have always been at 'odds' with each other. Many people
argue that not everything that is illegal, for example, parking on a
yellow line, is immoral; not everything that is immoral, for example,
breaking a promise, is illegal.
Morality is
'personal' to the individual; law must be 'universal' to society.
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Problems occur when issues of “personal choice” arise |
Shaw v DPP
(1962) HL
and
Knuller v DPP [1973] HL show how the judiciary are willing to
move the “goal posts”. They will prohibit behaviour they think society
will be wrong.
The big question is
“Who should say?” what should be prohibited, should it be Parliament or
judges? Furthermore, what things should they prohibit?
In
Shaw
Viscount Simonds said
“In the sphere of
criminal law I entertain no doubt that there remains in the courts of
law a residual power to enforce the supreme and fundamental purpose of
the law, to conserve not only the safety and order but also the moral
welfare of the State, and that it is their duty to guard it against
attacks which may be the more insidious because they are novel and
unprepared for.”
This bold statement
has not been followed, and the “residual power” is doubted.
Government pressure
ensured that we've cracked the morality of drink driving, but what about
the morality of speeding?
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Is law appropriate
for producing social change? |
Law can be a force
for social change. Health, education, discrimination are but three
areas where the law has been used to engineer society.
The National Health Service in 1947 created by law has been a major
success in improving society, but some observers question whether this is
an appropriate use of the law.
This also applies to
the criminal law for example; the Race Relations Act 1965 has been
the subject of considerable criticism, by writers who question whether it
is right to legislate in the field of personal relationships. The
legislation has clearly not been a total success - racial discrimination
still remains entrenched in some geographical and social areas - but now
few people would claim that this is not a proper field for legal
intervention as a force in educating and changing behaviour.
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