Aims of the Law and the Common Good - Essay Example

? Aims of the Law and the Common Good Legal Philosophy- Aims of the Law and the Common Good Introduction The law has various aims in the society. It is clear that the main aim of the law is to serve the common good. However, the aims of the law and the common good tend to differ. Various philosophical studies have demonstrated that different factors like value of autonomy, the nature of the harm as well as the benefit that is defined including the moral value, should be considered while developing any law. This paper seeks to discuss various controversial issues within the legal jurisprudence. The discussion will focus on the relationship between these issues and the provisions of specific laws, including the statutory provisions, constitutional provisions and legal opinions. The aim of this paper is to develop philosophical arguments, critiquing various arguments on the proper aims of law. a) Laws Permitting or Prohibiting Gay Marriage; The role of the law is among other things, to create solutions to the problems that are said to arise when community’s lives face difficulties. It is clear that any law should appreciate the rules of change, while seeking to adjudicate the difficulties it is created to resolve. The laws that either prohibit or permit gay marriage can be said to be introducing new social rules. The Congress in 1996 approved the Defense of Marriage Act, which sought to prevent the Federal Government from recognizing same sex marriages (Canale et al., 2009). The law also mandated states from recognizing same sex marriages that had been celebrated in other states. However, in certain states, same sex marriages are permitted while other states seek to acknowledge same sex marriages celebrated in other jurisdictions. States like Maryland have passed laws legalizing same sex marriages, but are subjecting them to referendum during the 2012 elections. The controversy surrounding same sex marriages is not spared in the courts. Court rulings have established same sex marriages. This is through judgments that have been made in cases. The Hawaii Supreme Court declared that the states prohibiting same sex marriages are acting unconstitutional, in the case of Baehr V. Lewin. Judge Joseph Tauro while sitting in the District Court of Massachusetts, held that it was a denial of federal rights to a lawfully married Massachusetts same sex couples, under the Defense Marriage Act, and this was a violation of their constitutional rights. It is clear that marriages between people of the same sex are challenged in courts, and it is fundamental for any judge to determine that aim of the law permitting or prohibiting same sex marriage. In so doing, the Judge should consider the common good of the people (Canale et al., 2009). This issue seems to be more intertwined with the theoretical underpinnings of the Utilitarianism theory which is more concerned with the normative ethics. John Stuart Mills advanced this theory with the view that the overall role of the law is to derive happiness to the greatest number in the society. The fact that same sex marriage is only recognized at the state level raises the question as to why one state would permit it, while the other state prohibits it. The definition in the Defense Marriage Act is within the traditional customary practices of the institution of marriage. The family was the basic unit of life and it served as basic unit of life through reproduction. This definition seeks to define a marriage within the meaning of the general segment of the American society. However, the states are said to be more distinct, particularly in the development of legislation that recognizes same sex couples. It is thus submitted that marriage laws are mainly determined by the state as opposed to the federal government, thus the Defense of Marriage Act does not seek to prevent the individual states from defining marriage, as they deem fit for the purpose of meeting the common good of their constituents (Finnis, 2011). This is seen to be the utilitarian approach as advanced by Jeremy Benthum. b) Laws Permitting or Prohibiting Abortion Abortion raises a lot controversy, mainly with the conservative members of the society. This is seen in the utilitarian school of thought, which advances the role of law as being the overall happiness for the majority. The main concern is that there are moral questions that arise within the society. There is concern on what is the actual concern. Mainly, there are cases where the health of the mother is said to be at risk. However, there are people who argue that the interests of the children are overriding those of the mother. They advance the philosophy that abortion should be criminalized. It is thus fundamental that we distinctively determine how well the law strikes a balance between the interests of all the groups, by ensuring that the common good is done. It is clear that abortion was legalized in every state by 1973. In the Supreme Court decision in the case of Roe v. Wade, by holding that every person was entitled to personal privacy, including the decision to procure an abortion, the court went on to hold that this right is not unqualified, and it must be considered against important state interests in regulation. It is clear that the court appreciated the fetus and its chances of surviving (Canale et al., 2009). Devlin based his theory on the social cohesion. He advanced the views that law without morality destroyed the free conscience, and thus paving way for tyranny. This brings in the concept of moral fabric, which means that the law, mainly criminal law, ought to respect and reinforce the moral norms within the society for the purpose of keeping public order. In the case of Planned Parenthood v Casey, the court held that there is a fundamental right to privacy, encompassing the decision to abort, by replacing the fetus rights over those of the mother, by granting the state autonomy. In this case, the court was divided by the role of law in balancing the interest of the state and those of the woman in regards to abortion. This case was fundamental in balancing the interests of the state and those of women in regards to abortion. It is my opinion that the law has failed to meet the common good in regards to abortion, because issues of abortion vary significantly in all the states. The issue that the law should first address is what abortion is. It is clear that abortion is distinct from miscarriage, and the law should appreciate this difference. The law should draw a distinction between induced abortions (Finnis, 2011). c) Laws Permitting or Prohibiting the use of Marijuana; There question of permitting the use of marijuana is a controversial one. Traditionally, the law has applied criminal sanctions against persons convicted for using marijuana. The main objective of the law has been to protect the interest of members of the society against the adverse effects associated with the use of marijuana. However, in the recent past, the prohibition of the use of marijuana has been criticized, with critics advancing the repeal of laws that prohibit the use of marijuana. The various states have legalized the use of marijuana, while other states have not repealed laws that prohibit the use of marijuana. This has raised constitutional questions as to what is the role of the law in regards to the use of Marijuana (Canale et al., 2009). Does law really serve its role or has it failed? Citing economic reasons over the health of the citizens, this country has been criticized to be a failure in policy development. Its is clear that the law should draw a line between the legal and illegal conduct, for the purpose of reducing the proscribed behavior and gaining the full benefit of such laws with minimum cost of enforcement. It is clear that people have failed to uphold the rule of law in regards to the use of marijuana. However, this does not mean that all persons uphold the use of marijuana. The law should secure the consent of the majority, by ensuring the common good is done. This is critical for making sound decisions as to whether marijuana should be legalized or not. The individual state should remember that the consent of the electorate is critical in passing legislations. This explains why certain states engage in referendums, because it reflects the true nature of the social contract that is created. It gives the law the approval or disapproval of all the electorate, for the purpose of meeting the common good. It may not be clear as to what may be fully acceptable to all men, but the law must apply the judgment of a reasonable man for the purpose of enforcement of the morals. This is what Hart considered to be conventional morality, because a few citizens may create justification with a view of preventing the rest. In my opinion, the law prohibits this to protect the general good of the public. d) Laws Permitting or Prohibiting Assisted Suicide; The law should be in a position to balance the interest of individuals with those of the general public. The question that arises is the nature of obligation that the law imposes on every individual. The law ought to balance the interests of the general public with those of the individuals. In regard to the issue of suicide, it is argued that no person has a right to take away his own life. Life cannot be equipped with anything hence the argument that life is a gift from God. Thus, one cannot proclaim to take away that which they do not have. This has been used to advance criminal sanctions against any attempt to commit suicide. Although every person has a right to make a decision, this right is not absolute. There is need to uphold the overall good for the purpose of serving the interests of humanity (Finnis, 2011). This is an issue that attracts a gray area in the sense that only the law should draw a line. The application of the schools of thoughts on the role of the law is paramount in this case. It is not clear as to what constitutes to a thing being immoral as Delvin argues. It is therefore the business of the law to guide the subjects by directing their actions. Further, the utilitarian theory makes it the sole responsibility to ensure that there is overall happiness. Judges and policy makers have faced challenges in regards to determining the laws regarding the issues of assisted suicide. In the case of Cruzan v. Director, Missouri Department of Health, the Supreme Court held that the law provides individuals with the right to refuse medical treatment which is life-saving. However, in the case of Washington v. Glucksberg, the court held that neither the Due Process Clause nor the Equal Protection Clause probated states from criminalizing the act of assisting a person to commit suicide. In the state of Oregon, there is a Death with Dignity Act, which authorizes the physicians to provide lethal drugs to adult members suffering from incurable diseases. There is a need for the law to meet its role, as well as the common good for the benefits of all. Thus, it may be argued that the constitution protects the ability of a person to obtain assistance in terminating their life. However, the law should be clear about the interests of the individuals with the common good. It is my opinion that assisted suicide should be legalized (Finnis, 2011). e) Laws Permitting or Prohibiting Harm to the Environment; The environment is mutually beneficial to all. There is therefore a need for mutual cooperation among all the individuals. Failure to uphold environmental regulation is said to have harsh effects to all members of the society. The fact that the concern of environmental laws is prevention of harm is clear that the law attempts to govern any form intervention, which may be said to harm the overall interest of all persons. This creates a responsibility among all persons, in ensuring that they do not harm the environment. This is not clear for the purpose of enforcement of the law (Finnis, 2011). It is the ethical responsibility of the law to ensure that there is overall happiness. The consequences of destroying the environment include taking away happiness. Thus, the law ought to ensure that the proper course, which is happiness, is achieved by ensuring that the general good is done to all as advanced by Jeremy Benthum and Mill. Conclusion It is clear that the law plays a critical role in balancing the interests of any given society. It is for the purpose of sustaining the common good that a balance is stuck between the interest of the general public and those of the individual citizens. Various institutions are fundamental in ensuring that the role of the law is realized, while upholding the common good. The various theories and schools of thought play an important role in ensuring that the interest as well as the common good is done to all. References Canale, D., Grossi, P., Hofmann, H., & Riley, P. (2009). A Treatise of Legal Philosophy and General Jurisprudence: A History of the Philosophy of Law in the Civil of Law World, 1600-1900. New York, NY: Springer Publication. Finnis, J. (2011). Human Rights and Common Good: Collected Essays Volume III. New York, NY: Oxford University Press. Finnis, J. (2011). Natural Law and Natural Rights. New York, NY: Oxford University Press. Read More