Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.1 Law or morality

Historically, the moral and religious values of a society influenced the development of law. Early philosophical writers believed in a higher law known as ‘natural law’, deriving from God. In principle, natural law principles should be reflected in man-made laws and if they are not then those laws should not be regarded as laws at all.

In the nineteenth century, writers such as Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873) rejected the concept of natural law, arguing for a rational man-made view of law. They asked the question: what is the use of law? And their answer was that its purpose was to work towards the greatest good for the greatest number of people and to minimise suffering. This became known as utilitarianism, but what does this theory mean in practice?

The following activity provides you with an opportunity to think about this.

Activity 3 The dilemma of utilitarianism

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You may think that the scenario in Activity 3 is fanciful, but the utilitarian dilemma does arise in more realistic situations:

  • The decision is to force a system of mass inoculation on the children in a population to ensure that a disease is eradicated and no more deaths occur. A utilitarian would consider that it was morally better to inoculate, even without consent of the children’s parents, to save more lives at little cost to the children themselves.
  • The decision is to drop a bomb on a country which will kill thousands of people but will have the effect of bringing a war with that country to an end quicker, ultimately saving more lives. A utilitarian would consider that it was morally better to drop the bomb and save the extra lives.

Utilitarians believe that law should follow the greatest good. Under the utilitarian construct, individual freedom is important; people should be free to choose their own conduct so long as they do not harm others. Or, if they do, the harm should not outweigh the harm done by the restriction of people’s personal freedom.

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Figure 7 Signs showing the words right way and wrong way

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