The nature of law: the distinction between legal and moral rules, the relationship between law and morality, theories of justice, and how the law enforces or departs from moral standards.

What this dot point is asking

WJEC Unit 1 opens with the nature of law itself: what law is, how legal rules differ from moral rules, and how the two relate. You need to define law, morality and justice, explain where they overlap and where they part company, and evaluate how far the law should enforce moral standards. The classic vehicle is the Hart-Devlin debate. This is a conceptual topic that rewards clear definitions and a balanced argument, not a list of cases.

The answer

Distinguishing legal and moral rules

Legal and moral rules differ in four ways:

• Origin. Law is made deliberately by an identifiable body; morality evolves gradually through custom and belief.
• Enforcement. Law is enforced by the state through courts and sanctions; morality is enforced by social pressure, reputation and conscience.
• Certainty. Law has a fixed date of commencement and a known content; morality is contested and varies between people and over time.
• Breach. Breaking the law triggers a legal sanction; breaking a moral rule triggers disapproval but no formal penalty.

Where law and morality overlap and diverge

Much of the criminal law reflects shared morality: murder, theft, rape and assault are both unlawful and widely regarded as immoral. This overlap gives the law legitimacy and encourages obedience.

Changing social morality often drives legal reform. The Wolfenden Report (1957) led to the Sexual Offences Act 1967, decriminalising private homosexual acts between consenting adults, a clear example of the law retreating from enforcing a contested moral view. Debates over assisted dying, seen in R (Nicklinson) v Ministry of Justice (2014), show morality and law still pulling in different directions.

The Hart-Devlin debate

The central evaluative debate asks how far the law should enforce morality.

• Lord Devlin argued that society is held together by a shared morality, that a recognised morality is as necessary as a recognised government, and that the law may legitimately enforce moral standards to prevent society disintegrating. He thought the reasonable person's sense of intolerance, indignation and disgust could justify legal intervention.
• Professor H.L.A. Hart, drawing on John Stuart Mill's harm principle, argued that the law should only restrict freedom to prevent harm to others, not to enforce private morality. Using the law to police consensual private conduct, he argued, is an unjustified interference with individual liberty.

Theories of justice

Justice is the idea of fairness: giving each person their due and treating like cases alike. It has a distributive dimension (the fair allocation of benefits and burdens in society) and a corrective dimension (putting right a wrong). Key theories you can deploy include:

• Aristotle: distinguished distributive justice (fair shares) from corrective justice (restoring balance after a wrong).
• John Rawls: just principles are those people would choose from behind a veil of ignorance, not knowing their own place in society.
• Utilitarianism (Bentham, Mill): justice is whatever produces the greatest happiness for the greatest number.
• Marxist theory: law and "justice" can mask the interests of the powerful.

Legal procedures such as equality before the law and due process aim at justice, but unequal access and imperfect outcomes show that law and justice are not the same thing.

Examples in context

The shift on private morality is the clearest illustration of the debate in action. Before 1967, private homosexual acts between consenting adult men were criminal, reflecting one strand of public morality. The Wolfenden Report applied something close to Hart and Mill's reasoning, that the law's function is not to intervene in the private lives of citizens, and Parliament enacted the Sexual Offences Act 1967. Devlin's response was that society is entitled to use the law to preserve its shared moral fabric. Half a century later the assisted dying debate runs along the same fault line: in R (Nicklinson) the courts wrestled with deeply held but conflicting moral views while leaving the law to Parliament, showing that where morality is genuinely divided the law often moves slowly and cautiously.

Try this

Q1. Give two differences between a legal rule and a moral rule. [2 marks]

• Cue. Origin and enforcement: law is made by the state and enforced by courts; morality evolves and is enforced by social pressure.

Q2. State the harm principle and name the theorist associated with it. [2 marks]

• Cue. The law should only restrict freedom to prevent harm to others (John Stuart Mill).

Q3. Discuss how far the law should enforce moral standards. [12 marks]

• What the marker wants. Definitions, the overlap and divergence of law and morality, the Hart-Devlin debate with a reform example, and a reasoned conclusion taking a position.