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Aims of the Law and the Common Good - Essay Example

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Aims of the Law and the Common Good Name: Institution: 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…
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Aims of the Law and the Common Good
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Download file to see previous pages 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. ...
trict 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 ...Download file to see next pagesRead More
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