Law and Morality 2

At the end of the last blog post, I said I was going to move on to “Law and Justice”. However, the W102 module, Unit 16 also deals with law and morality, and I suspect that this is a good time to summarise this unit as well. However, if you are using this blog to revise for W101, please ignore this post.

Learning outcomes

After studying this unit you should be able to:

• define law and morality
• identify key similarities and differences between law and morality
• identify the moral dimension of legal rules
• consider whether there is a moral duty to obey the law
• compare the argument from natural law and positivism
• consider whether there is a necessary connection between law and morality
• be aware of, and be able to form an opinion on, the debate on whether the law should enforce morality
• use your research skills to find journal articles and other relevant content.

© The Open University

The Unit begins by defining law as: “Law is a system of enforceable rules that regulate the conduct of people in society.” (The Open University, 2014)

Morality as defined by Phil Harris (2007, p 26): “A society’s ‘code of morality’ may be defined as a set of beliefs, values, principles and standards of behaviour, and such codes are found in all social groups.”

Bernard Gert (2011) postulates:

“The term “morality” can be used either

1)    descriptively to refer to some codes of conduct put forward by a society or,

a. some other group, such as a religion, or

 

b. accepted by an individual for her own behavior, or

2)    normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”

It is important to point out here, I think, one of Gert’s followup points; namely, that if a person is not part of a particular group, then s/he does not in any way feel obligated to conform to the morality of the group. This is a key difference in the descriptive and normative senses of morality.

Connection between law and morality

Phil Harris (An introduction to Law, 2007, p27 – p29) shows that there is a connection between law and morality in that aside from the actual wrongdoing/wrongdoer, there must be the mental aspect (mens rea) or ‘blameworthiness’ which is a moral principle.

(to be continued)