What Constitutes a Proper Aim of Law - Essay Example

?Donna Purcell Order# 545265 10 May Law: Five Controversial Argumentative Views That Constitute A Proper Aim of Law John Stuart Mills developed “the harm principle” which states that each individual has the right to act as he wants as long as these actions are not harmful to others. The individual is considered rational enough to make decisions about their own well being and can choose any religion they want. This theory also states that government should interfere only when it is for the protection of society. He is quoted as saying, “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” “In the part which merely concerns him, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” Mills was a British philosopher, economist and civil servant and a very influential contributor to the ideas of his time in social theory, political theory, and political economy. His concept of liberty gave complete control and freedom to the individual and opposed unlimited state control. Mills’ theory excuses persons who are “incapable of self-government” from this principle, such as young children or those living in “backward states of society.” Mills also felt that despotism (tyranny) is an acceptable form of government for societies that are “backward,” as long as the absolute ruler has the best interests of the people at heart. However, the theory has complications as “harms” may include actions that are omitted as well as acts of commission. Failing to rescue a drowning child or failing to pay taxes, both are harmful omissions that may be regulated by law. Mills did not think that offense constituted “harm”; however, an action could be curtailed if it violated the morals of a society. He also contended that free speech is a necessary condition for intellectual and social progress. He was famous for being one of the first supporters of rights for women. In his book “The Subjection of Women” he points out three major facets hindering women, society and gender construction, education, and marriage. His formation of the “greatest-happiness principle” is his most famous theory. It stipulated that a person must always act so as to produce the greatest happiness among feeling beings within reason. He also felt that intellectual and moral pleasures were more important than physical forms of pleasure. He believed in free markets and accepted intervention in the economy for tax on alcohol and supported legislation on animal welfare. John Austin was a noted British jurist and author of law and jurisprudence. He developed a theory called “legal positivism.” This basic theory of law states that there is no association between the validity of a law and ethics and morality. Therefore, by “legal positivism” the law is considered separate from moral and ethical values. It considers the law to be studied by lawmakers who are humans. It does not give any real basis for arguing against the validity of any law based on the content, no matter how horrible to the morality of any person. The argument is based solely on the nature of the law being a human institution. Gerald Dworkin is a professor of moral, political and legal philosophy. He is noted for his development and writings on “moral paternalism”, which refers to an attitude or policy based on the hierarchy of a families’ CEO or authority. His research includes ideas of the nature and justification of self-government or the right of self-government. His most recent book defends physician-assisted suicide. In it he argues that doctors who approve of stopping life support at the patient’s request, giving pain-relief medication that kills the patient, or who approves terminal sedation are inconsistent in condemning physician-assisted suicide. “Legal moralism” is a theory of jurisprudence which projects that laws may be used to prohibit or require a certain behavior regardless of whether society sees it as immoral or moral. It further implies that it is permissible for the state to use its authority to enforce society’s collective morality. Gerald Dworkin has addressed this theory in his recent research in 2004. On July 20, 1994, “Compassion in Dying” filed a complaint for declaratory judgement on behalf of three New York physicians and three terminally ill patients. Judge Thomas P. Griesa upheld New York law prohibiting assisted suicide. On November 8, 1994 Oregon approved the “Death with Dignity Act.” This Act requires that the Oregon Health Division checks compliance with the law, compiles information about the patients and physicians who participate in legal physician-assisted suicide, and publish the information in an annual report. In 1996 two Federal Circuit Courts of Appeal ruled against laws on assisted suicide. The appeals on these rulings were heard by the U. S. Supreme Court on January 8, 1997. Both Circuit Court rulings were overturned on June 26, 1997. Do these laws advance a proper aim of law? Child pornography is defined under United States law as “the visual depiction of minor children under the age of eighteen engaging in sex acts such as sexual intercourse, masturbation or oral sex.” The definition includes photographs and pictures of children’s genitalia. In the United States child pornography is against the law under 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children. A great many of the court cases now use “Dost factors,” named after the US vs. Dost case of 1996, to make a decision as to what images are pornographic. These guidelines determine whether the focal point of the photo shows the child’s’ genital region, is sexually suggestive, whether the child is posed unnaturally, whether the child is nude, or semi-clothed or fully clothed. These guides also determine whether the picture indicates the child’s’ willingness to engage in sexual activity and whether the picture is used to get a sexual response from its viewer. The US Supreme Court has also stated that fully clothed pictures may constitute child pornography. There has been much focus in recent years about child pornography on the Internet, which has prompted the Child Online Protection Act, 47 U.S.C.231, and the Children’s Internet Protection Act, 47 U.S.C. 254. These Acts have outlawed child pornography on websites and any online forms of child porn. Do these Acts advance a proper aim of law? The most famous case on abortion was judged by the Supreme Court in 1973 in the case of Roe vs. Wade. Along with Doe vs. Bolton as a guideline this decision legalized abortion in the first trimester of pregnancy. The decision was ruled by Judge Harry Blackmun and was based on the residual right of privacy. This famous decision reversed dozens of state antiabortion statutes. The decision was based on two cases, one of an unmarried woman from Texas, where abortion was illegal unless it could be shown that the mother’s life was as risk. The other was a poor married mother of three from Georgia, where state law required permission by a panel of three doctors and hospital officials. This ruling established the right to an abortion and also gave the states the right to abort an unborn child in the second and third trimesters of pregnancy to protect the woman and the “potential” life of the unborn child. However, the National Council of Bishops denounced this decision. In 1992, Planned Parenthood vs. Casey, provided the rules which abortion providers have to follow in order to comply with the law. This law was prompted by requirements that providers of abortions follow certain rules as to parental consent and notification of the baby’s age? The court reaffirmed the decision in Roe vs. Wade but with further restrictions. Did these rulings advance a proper aim of law? In Goodridge vs. Massachusetts Department of Public Health, 440 Mass.309 (2003), Massachusetts “gay marriage” decision, the court ruled the same laws and procedures that govern traditional marriage also apply to same-sex marriages. No special procedures are required for a same-sex marriage. The law is quoted as, “barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.” The court reconstructed the definition of common-law civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. The court also remanded the case to the Superior Court for entry of judgement consistent with the courts opinion, and ordered that the entry of judgement be held over for 180 days to permit the legislation to take action. The Gay and Lesbian Advocates and Defenders (GLAD) were close advocates of the case. Has this case and the resulting laws advanced a proper aim of law? March 31, 2011 in Benbrook, Texas the police referred an animal cruelty case involving chicken sacrifices by high school baseball players to juvenile court. The police said that the teens were ages 15 and 16 and engaged in cruel acts that caused the death of two baby chickens. Apparently the youths were acting on a superstition relating to a slump in baseball performance. The two baseball players were kicked off the team after being accused of sacrificing chickens to improve their performance on the Western Hills High School baseball team. The coach, Bobby McIntire, said that he suspected the teens might have gotten the idea from similar sacrifices in baseball movies like “Major League” and “Bull Durham. The two teens face a two-year jail sentence and up to $10,000 in fines. Do the actions of the law in this case advance a proper aim of law? Considering Mill’s “harm principle” that holds that the individual should be free to do as he wishes unless he harms others can apply. Of coarse, if the action is self-regarding and only affects the person doing the action, then society does have the right to intervene, even in cases of animal rights. “Legal positivism” interjects that we should construct and modify our concept of law to remove moral criteria or moral values from the judicial decision making. The right of self-governing through “moral paternalism” places the law in one avenue of governing. In comparing the philosophical approaches of all three writers and attempting to separate moral values from legal intervention, at some point legal intervention is essential in order to maintain a controlled governing state. In order for a society to function within a normal realm of values, it is essential that laws be established to advance a proper aim of law. It is noted that moral values are a matter of individual preference, however, it is very hard to separate the two in a law-abiding society. The five issues introduced are all moral issues, but when the lines became intertwined the law is forced to step in and move the statutes in a direction that is good for the individual as well as society as a whole. Works Cited: Massachusetts Law About Same-Sex Marriage. “The Case. Goodridge v. Mass. Department Of Public Health.” Web. 10 June 2011. http://masscases.com/. Planned Parenthood v. Casey, 1992. Web. 10 June 2011. http://abortionfacts.com/. Roe v. Wade. Web. 09 June 2011. http://questia.com/library/. Criminal Law. “Child Pornography Law.” Web. 09 May 2011. http://criminal-law.freeadvice.com/criminal-law/. U. S. Supreme Court Rules on Physician Assisted Suicide Cases. Web. 10 June 2011. http://wings,buffalo.edu/bioethics/. Peterson, Matt. 31 March 2011. “Update: Benbrook police refer animal cruelty case involving Chicken sacrifices, high school baseball players to juvenile court.” Web. 10 June 2011. http://crimeblog.dallasnews.com/. John Stuart Mill. Web. 09 June 2011. http://en. Wikipedia.org./ John Austin. Web. 09 June 2011. http://en.wikipedia.org/. Stanford Encyclopedia of Philosophy. “John Austin.” 24 February 2001. Web. 10 June 2011. http://plato.stanford.edu/. Dworkin, Gerald. “Moral Paternalism.” Web. 10 June 2011. http://ucdavis.academia.edu/. Gerald Dworkin. Web. 09 June 2011. http://en.wikipedia.org/. Legal positivism. Web. 09 June 2011. http://en. Wikipedia.org/. Read More