Law and morals Part A
Law has been defined by Sir John Salmond as the body of principles recognised and applied by the state in administration of justice. There are two theories on what law is, the natural law theory and the positivist law theory Lloyd a natural law theorist defined the law as the constant assertion that there are objective moral principles which depend upon the natural of the universe and can be discovered by reason Natural law theorists believe that for law to be valid it must coincide with natural law. Natural law theorist Aristotle describes natural law to be the law of nature. Positivist law theorists such as John Austin would describe law as ‘a law which exists to be law ‘though we happen to dislike it’ positivists such as Jeremy Bentham rejected natural law theories, he describes them as ‘nonsense on stilts’ his key argument was that natural law was based on principles that could not be proved. Legal positivists believe that a law that is made in a manner recognised by the sovereign power of the state is valid irrespective of its content. Legal rules have many different characteristics. For example breach of legal rules can result in state sanctions and procedures – a S.47 OAPA 1861 offence carried and a maximum sentence of 5 years. Compliance is not a matter of choice when it comes to legal rules. These rules are imposed upon all members of society. Compulsory compliance applies to judge made decisions as well. The case of R v R established that man could be found guilty of raping his wife, this was a judge made law. Fuller would argue that this is not valid law as it is retrospective. Legal rules are made and take affect at a precise time. A precedent is created in the judgement of case and it applies to future cases and lower courts. The legislation will only start to take effect at a precise time for example the Smoke Free Premises and Enforcement Regulations , implemented a ban on smoking in public places , were made on 13th...
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