2 minute test on Duress
Law and Morals
Write your own definition of a
law and a rule on the
Whiteboard.
Rule: “a general norm mandating or guiding conduct” Twining and
Miers
Law: “the body of principles recognised and applied by the state in
the administration of justice” Sir John Salmond
“ Command issued from a sovereign power to an inferior and
enforced by coercion” John Austin: The Province of Jurisprudence
Hart’s approach to rules
Defining charcteristic of a rule is its enforceability.
They are obeyed for 1 of 3 reasons:
1) Moral Obligation Shaw V DPP (1962), Judges are
the ultimate guardians of our morals and have a
duty to act against immoral behaviour
2) Reasonable and relevant rule: Abandonment of
‘Poll Tax’
3) Penalty imposed if rule is broken. Eg. Seatbelts
Morality
Morals: “ a set of beliefs, values, principles and standards of behaviour” Phil
Harris Introduction to Law
Moral values of communities lay down a
framework for how people should behave.
Eg. 10 commandments, good Samaritan law.
Differs from individual to individual and culture
to culture although some behaviour is
universally unacceptable.
Roots are often found in religion eg. Bible, Koran
forms basis of sharia law.
Moral rules
• Compliance not required by state
• Develop gradually over time often from
religious rules by may adapt organically with
society. Eg. Attitudes to homosexuality
• Enforced informally through social or
domestic pressure.
Morality and Law
• Law of country will generally reflect the moral
values accepted by the majority of the people.
However, Adultery morally unacceptable by both
Christianity and Islam however it is not considered a
crime in Christian Countries. However it is in some
Muslim Countries.
Morality in Practice
• In England there has been a move away from religious
beliefs impacting on law.
• Eg. Abortion Act 1967
– Gillick V West Norfolk and Wisbech (1986)
However it is still influential in some areas eg.Euthanasia (R
(Pretty) V DPP (2001) and Re B (2000), R (Purdy) V DPP (2009)
R V Cox (1992) and R V Arthur (1981) : Doctors assisting
Airedale NHS Trust V Bland (1993): Medical staff can stop life
support machine in patient was in a persistent vegetative state
even if they could breathe unaided. Many consider this immoral
as it denies the sanctity of life.
Pluralism
• How are we pluralist
–
–
–
–
Cultures
Races
Political ideals
Religious followings
• Durkheim suggested that it is almost impossible
to find a single set of moral values that would be
acceptable to all the members of a modern
society.
• However core issues: Life and Death?
Abortion
Does every pregnant woman in the UK have the
right to have an abortion?
No, only if certain conditions are met:
- Pregnancy more damaging to the woman or members of
her family than termination
- Foetal abnormality.
- However, in the USA all women have a constitutional right
to an abortion Roe V Wade (1973)
Difference between law and morality
Complete your card sort.
Relationship between law and morals
• Both normative: dictate behavioural expectations
• There is usually an overlap to make obedience
more likely
• Moral viewpoints influential in law making
• Liverpool care Pathway
• Abortion Laws
• Euthanasia
Public
Morality
Judicial
Change
Public
Morality
Legislative
reform
Abortion Act 1967
Civil Partnerships
Act 2004
Law reform
Public
Morality
Race Relations
Act 1976
Law reform
Murder (Abolition of
Death Penalty) Act
1965
Campaign
Public Morality
R V R(1991)
Brown (1993)
Divergence of legal & moral rules
• Some legal rules appear to have no moral
connection eg. Parking on yellow lines, driving
at 75 mph
• Some moral rules have little or no legal
backing eg. Good samaritan rule.
• Reasons for the divergence betwn. Legal and
moral rules
– Moral attitude not popular enough
– More social harm may be created by legal
intervention
Hart-Devlin debate:
1957 Wolfenden committee: recommended the legalisation
of prostitution and homosexuality.
Professor Hart
Approved findings of report.
Should be clear line between
morality and law
Morality private judgement
and state has no right to
intervene.
Wrong to punish those who
have done no harm to others.
Legal system should be based
on logical ideas producing
‘correct’ decisions from rules
Lord Devlin
Society required the
observance of certain moral
principles which should be
supported in spite of public
opinion.
Judges have a residual right to
protect and preserve some
sort of common morality
(Shaw V DPP)
Legal Enforcement of Morals
Criminal Law
Sexual offences: Strict liability underage sex (R V G, 2008)
Homicide offences: Thou shalt not kill
Theft Act: Thou shalt not steal
Defences: DR, LC
Intoxication (Kingston)
Natural Law Theorists
• Aristotle: Principles
which governed the
universe, and explained
how it was structured,
functioned and could
be discovered through
observation and power
of human reason.
• Aquinas: Man is able to
discover truth of divine
law through revelation,
reflection and practical
reasoning. If human
law was a variance with
divine law it was not
legal but a corruption of
the law
Natural Law Theorists
• Fuller: Any legal system is
only valid if it conforms to
certain procedural
requirements, including
the law must be
understandable and that
it must not be
retrospective.
• R V R (1991) - R V Crooks
(2004)
• Lord Lloyd: “What has
remained constant is an
assertion that there are
principles of natural law…
the essence of natural law
may be said to lie in the
constant assertion that
there are objective moral
principles which depend
upon the nature of the
universe and which can
be discovered by reason”
Positivists
• Bentham: Rejected natural
law theories as being
‘nonsense upon stilts’.
• Natural law principles
cannot be proven confuse
legal/moral issues
• Validity of law did not
depend on whether it was
good or bad
• Promoted utility principle:
greatest happiness for the
greatest number
• Austin: Law may be valid
irrespective of moral
content.
• Command from sovereign,
who bulk of society is in
habit of obeying, enforced
by sanction.
Hart -Mill
• The minority should not
be made to conform to
the will of the majority
when in private, as this
would amount to tyranny
and be immoral.
• Using law to enforce
moral values was
unnecessary, undesirable
and morally unacceptable
•
•
•
•
• Influence
Sexual Offences Act 1967
Obscene Publications Act
1968
Gillick V Norfolk &
Wisbech HA (1986)
R V Emmettt (1999)
Stephen-Devlin
• Law shares a common
morality and law should
intervene to punish acts
which offend shared
morality whether done
in public or private.
Failure to intervene
would result in the
disintegration of
society.
• Influence
• Gillick V Norfolk &
Wisbech HA (1986)
• Shaw V DPP
• R V Brown
Exam Question
Discuss the extent to which morals have had a
serious impact on the development of law. Use
examples from criminal law or civil law or both
in illustrating your answer
Fault
What do we mean by fault in a legal context?
- Legal blame/responsibility
- Mental intention of defendant
- Reckless activity
Does everyone have an automatic
right to a divorce?
No, only if certain conditions are met:
For example proving: irretrievable breakdown
Unreasonable behaviour
Therefore fault must be proven
Fault V Strict Liability
• What is a strict liability offence?
• These offences are usually concerned with
protecting the public in general, eg regulations
on sale of food/alcohol.
• Protection of society is more important than
imposing liability on an individual who may
not be at fault in any way.
• Pharmacutical Society V Storkwain Ltd (1986)
• RVG
Levels of Fault
• Specific Intention eg. Murder
• Recklessness eg. Manslaughter, OAPA s.47
• Negligence eg. Gross Negligent Manslaughter
Criticisms
• Is it right that intention to cause GBH is
adequate intention for murder? Vickers (1957)
Mitigating Fault
• Defence of Mistake Williams (1987)
• Defence of automatism
• Reducing liability
– Diminished responsibility
– Loss of control
Sentencing
• Judges have discretion as to sentencing except
in the case of murder and other offences
where a minimum sentence is set. EG. Repeat
serious offenders, drug dealing or burglary.
• Murder- tariffs (CJA’2003) Minimum jail term
before eligible for parole.
• Remember also the mitigating factors
Should there be liability without fault?
• Acceptable if the purpose of the offence is
maintaining standards
• Allowences for blameworthiness can be made
in sentencing (Baroness Wootton)
Baroness Wooton
• Where aim of criminal law is to prevent socially
damaging actions question of motivation is
irrelevant when deciding guilt.
• Point of sentencing is the time at which the
presence or absence of guilty intention Is all
important.
• The courts can deal with the offence according to
the level of fault by imposing a sentence which is
likely to prevent a recurrence of the forbidden
act.
Exam Question
• Discuss whether liability in the law should be
based on fault. Use examples from criminal
and/or civil law to support your discussion.
Balancing Conflicting Interests
• Interests/rights of 1 individual and the interest
of the majority may sometimes fall into
conflict.
• Concept of fault is wrongful interference of
another persons rights/interests.
Corresponding rights and duties
• Individual has enforceable right this imposes a
duty on others to acknowledge that right.
• Eg. In criminal law right to safety/life and not
be a victim. Right to property etc.
• Sanctions imposed for breach of duty.
Conflicting rights
• Certain rights have limited protection because
to exercise the right may interfere with
another person’s interests.
• Eg. Right to life of unborn child: Who has
precedence Father or Mother’s wishes?
• Paton V UK (1990)
• AG Ref (No 3 of 1994) (1997)
Rights of Victim Vs Rights of Defendant
• If there is not a mens rea then the defendant
is likely to be found guilty even though the AR
of the crime occurred and infringed V’s rights.
• Defendant cannot rely on any mistaken belief
arising from voluntary intoxication. (O’Grady)
Criminal Justice System
Whose rights are being balanced?
Balancing Individual rights and Public
Interests
• R V Brown and R V Wilson
Crown Prosecution Service
Likelihood of success and public interest
Bail
• General right to bail as accused is presumed
innocent until proven guilty so should not be
held in custody while awaiting trial
Sentencing
• Aims:
– Punishment of offenders
– Reform and rehabilitation of offenders
– Protection of the public
Exam Question
• It is possible to argue that one man’s right
involves another man’s duty; but because of
the competing nature of rights it is possible
also that not every right Is enforceable.
• Using examples from criminal law, or civil law
or both, consider whether or not the above
statement is true.