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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.
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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.
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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.
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"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.
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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.
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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.
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Examples of positive rules |
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Do not kill - murder is a a common law
offence
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Do not park on double yellow lines -
contrary to local byte-laws
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Do not steal - theft is contrary to
section 1 Theft Act 1968
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Examples of normative rules |
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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.
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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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