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Law and Morality

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Law and Morality

Not all people are convinced that the law should used to enforce a particular moral code. Homosexuality was decriminalised in 1967, but s.28 of the Local Government Act 1988 prohibited its promotion in schools as an acceptable way of life. The Local Government Act 2003 section 122 removed this prohibition.


The common law has been used to denounce homosexual behaviour, for example in R v Brown [1994] HL the criminal law punished sexual behaviour that caused no harm to anyone except some consenting adult participants.



Interaction between Salmond’s Interlocking Circles



In any legal system there will be some overlap between legal and moral rules.

This is called Primary Law where such crimes as murder and theft are said to be placed.  It is this primary law that tempts us to argue that law and morality are one and the same thing.


Legal and moral wrongs

Telling lies or acting dishonestly is generally considered to be wrong morally.

Dishonesty in certain circumstances may be regarded as legally wrong, but only under strict definition. E.g. Sec 1 Theft Act, 1968.


"Absolutes of behaviour"

There are few of these. Society’s values and ideology tell us that killing, raping and stealing are wrong. But there may be circumstances where it is justified. E.g. aborting a child.

Morals imply a higher standard of behaviour. Law needs to be justified.


Normative rules

Morality is composed of "Normative rules" which set out what a person should do, or what s/he should refrain from doing.


The emphasis is on "should", because the individual is not compelled to abide by normative rules, he or she simply ought to.


Positive rules

Law is made up of "Positive rules" which impose a legal obligation to do or refrain from doing something. If a positive rule is breached a sanction may be imposed.


Examples of positive rules

  • Do not kill - murder is a a common law offence

  • Do not park on double yellow lines - contrary to local byte-laws

  • Do not steal - theft is contrary to section 1 Theft Act 1968

Examples of normative rules

  • Honour thy father and thy mother

  • Do not bear false witness (Be truthful)

  • Rescue a drowning child

Law is often written in the negative

The law generally requires us to refrain from doing things, leaving us free to do whatever it does not prohibit.  So, it prohibits murder and theft, but leaves us free to commit adultery, lie, and read horoscopes.


Sometimes it requires us to do certain things, for example to register a child's birth, or return our tax form.  But it does not require us to put ourselves out and rescue drowning children, unless we have a duty to so act because of a special relationship.


Some of the above examples come from Biblical teachings, particularly the Ten Commandments and theft and murder are part of the English Legal System, but many of the remaining 8 are not.


Consequences, a utilitarian argument

A utilitarian approach is to judge actions by their consequences.  Others (called deontologists) argue that actions are intrinsically either right or wrong.


Thus utilitarians argue that the "ends justify the means" even if the means are sometimes immoral.


It might therefore be acceptable to allow a terrorist bomb attack to go ahead, killing a number of people, if by doing so the safety of an informer is ensured.  The informer will then be able to give further information about future attacks which could save many more lives.


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