General notes for Law and Society PDF

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Lecture 1: Between Law and MoralityKey-thought: To what extent does society have the right to control and impose limits on thoughts, beliefs and actions of individuals?To develop your own views critically of what is thought to be good and bad, just and unjust.Morality is... The standard of right an...

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Lecture 1: Between Law and Morality Key-thought: To what extent does society have the right to control and impose limits on thoughts, beliefs and actions of individuals? To develop your own views critically of what is thought to be good and bad, just and unjust. Morality is…  The standard of right and wrong that should guide our conduct  Related to values and norms; a normative system of ethics, good justice and truth  Provides rules for social living: ways of settling conflict To analyse moral legal matters e.g. should we kill another person? Issue: What should the role of law be to organise life in community so as to achieve ‘the common good’? The limits of the role of law: The Queen v Dudley and Stephens (1884) Material facts Crew present

Event

Legal issues

Dudley, the captain Stephens, the first mate Brooks, a sailor Richard Parker, a cabin boy; an orphan (first voyage at sea) Disaster in sea caused the boat to sink All the crew members escaped On the first three days, ate nothing On the fourth, ate one can of turnips On the fifth, ate one can of turnips and a caught turtle Ate nothing for the following 8 days: no food and water On the 19th day, Dudley suggested drawing lots on who should be killed Brooks refused Parker insisted on drinking seawater and was dying On the 20th day, Parker was killed by Dudley and Stephens All three fed on the flesh and blood of Parker until rescue Drawing lots  implied agreement from customs in society (fair and equal) Customs are built from consent and free will Refusing to kill Parker  Kant’s categorical imperative Killing and eating Parker  utilitarianism

To learn about the debate on law and morality i.e. utilitarianism, liberalism (free will). Philosophe r Bentham

Domain

What is it?

Example

Utilitarianis m

Consequentialist

 Sacrificing Parker for the survival of Dudley, Stephens and Brooks

Maximisation of happiness and the production of good consequences Not concerned with the



Mill

Liberalism

intrinsic value of the action (whether the consequence is right or wrong) (1) Harm principle People should be free to act however they wish, unless their actions cause harm to somebody else

(1) Harm principle

Indiviual rights

 Regulation about the limit of alcohol whilst driving  No regulation about the limit of drinking alcohol

(2) Free will (consent) (2) Free will (consent) If the affected individual consents to assume risk (without force or fraud), it does not count as harming someone

Kant

Kantianism

Categorial imperative An absolute, unconditional requirement that must be obeyed in all circumstances Theory of duty and right

 May permissibly offer unsafe employment to others (with consent)  Limit to consent: society should not permit people to sell themselves into slavery  Certain types of actions, e.g. murder, theft and lying, are absolutely prohibited (even in cases where the action would bring more happiness than the alternative)



Deontological

Slippery slope argument – starting to make exceptions - To allow for that, is to downgrade the value of life - ‘Open the flood gates’

Lecture 2: The Boundary of Law – Law, Morality and Sexuality Key-thought: When is it justified for law to interfere with our lives?  Should the law shape the morals of society?  Should the law lead and change morality within society?  What moral standards should (or should not) the law enforce? To identify the critical factors to be considered in the law and morality debate: the boundary of law in “private” matters.

Devlin and Hart on the role of law in the regulation of sexual morality. Wolfenden Report   

The Report of the Departmental Committee on Homosexual Offences and Prostitution Known as the Wolfenden Report; named after the chairman (Lord John Wolfenden) Established by the UK government to look at law reform in two special areas

Recommendation attracted considerable debate, with famous exchange of views by Devlin and Hart Issues being examined in the Report: 1. Should private sexual act between consenting adults be decriminalised? 2. Should open solicitation of prostitution be continued a crime?  Crux of the debate: Should criminal law be used to regulate (private) sexual morality?  Results in a loss of liberty (jail time) if punished  Hart emphasised on ‘private act’; Devlin does not matter whether private/public act

Lord Devlin – judge from the Court of Appeal Important judgments in criminal law Professor Hart – scholar, important figure in jurisprudence (legal philosophy) Revived the school of positivism in modern times Jewish Likely to be a homosexual Successful barrister and tax lawyer

What were the issues examined Issue in law = question that captures the debate Should private sexual ac t between consenting adults be decriminialised? - Yes (committee) - UK government waited for 10 years before decriminalising homosexual behaviour - Hart agreed; Devlin disagreed

Party Committee Devlin Hart

Should private sexual act between consenting adults be decriminalised? Yes; Government decriminalised homosexual behaviour 10 years later No Yes

Should open solicitation of prostitution be continued a crime? Yes Yes Yes

Should criminal law be used to regulate (private) sexual morality? Devlin – controversial theory about using the law to uphold morality (even sexual). Two reasons: (1) ‘Disintegration thesis’

Morality is like cement; functions to hold the society together

(2) Law sets a standard to protect the youth

Law must be used to protect our values If not, society will far apart (‘disintegrate’) The youth are naïve; do not know the standard of right and wrong Law is a yardstick and benchmark to set these standards Counter-argument: How to ascertain ‘the moral standard’? Devlin disagreed with the composition of the committee; it should be composed of the jury, not the elite of the society To give effect to their opinion, three conditions must be fulfilled: 1. Decision from the jury must be unanimous 2.

Hart Morality has an important character; it is immune from deliberate change Should be universal Important for social life to value it Morally wrong if voluntary act (only if we can control the act, should it be considered morally wrong) Critical vs positive morality Critical = punctuality must Positive = conventional standard

2. set a standard to protect the youth Youth are young and naïve, they do not know the standard of right and wrong Use law to set a yardstick, to set a benchmark, to let us know the standard of right and wrong But: how to ascertain this moral standard? Disagreed with the set up of the committee composed of the elite; should not ask elite in society Should ask the jury instead (represent the mass, the common people) In asking them and to give effect to their opinion, there are three conditions: (1) ecision from jury msut be unanimous (2) rational conclusion, outcome from debating and discussing with fellow jury members (3) all jury members must arrive after careful deliberation from lawyers and explanations from judges = considered the law Hart – no Empirical evidence that in human history, our society has disintegrated just bc they don’t share common values? Country only falls apart bc of wall, famine, natural disasters = not bc people don’t share a common set of values Better for society to disintegrate sometimes, esp for evil society (slavery; nazi) Must draw distinction positive and critical morality Devlin only referred to positive morality – when society enforce and practising = does not mean it is right to do so

Must be aware of critical moral standard that we should practice Using criminal law to regulate sexual morality (homosexual) Unnecessary misery Deprivation of liberty – justified? a. offenders – consenting adults in private, not to third-parties b. potential offenders – misery for them, not sure about sexual orientation his reliance on the harm theory principle - Revived utilitarianism, introduced a new element: liberty - Draw the boundary between individual freedom and state regulation - The state should not interfere too much, unless our act will harm a third party - Between consenting adults = no harm = law should not interfere - Legit sphere of legal control = law is only justified to regulate other-regarding act, but not self-regarding act Unresolved Phone book containing info of prostitution Solicitation of prostitution on the streetes = hart says should ban, no longer private

What should the relationship between law and morality is Devlin concerned with protecting moral at a particular time Hart concenred with liberty and wish of indiviuals Arena = purely private?

To identify the critical factors to be considered in the law and morality debate: the boundary of law in ‘private’ matters Devlin and Hart on the role of law in the regulation of sexual morality Wolfenden Report Full name

Agenda

The Report of the Departmental Committee on Homosexual Offences and Prostitution Known as the Wolfenden Report, named after the chairman of the committee (Sir John Wolfenden) Published after a succession of well-known men were convicted of

homosexual offenses Recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offense’ Issues examined in the Report: 1. Should private sexual acts between consenting adults be decriminalized? 2. Should open solicitation of prostitution be continued a crime? Implications

These recommendations attracted considerable public debate Famous exchange of views by Devlin and Hart

Hart vs Devlin Debate (1960s)

Occupation Important features

Lord Hart Judge Important judgments in criminal law

Professor Devlin Professor of jurisprudence Legal philosopher Jewish Likely to be a homosexual

To explain and apply Mill’s thinking on harm principle, focusing on free will and consent

Lecture 3: What’s the Right Thing to do?

Nature of morality Type of morality Teleology Deontology

Definition ‘The end always justifies the means’ Right actions and intentions Things we ‘ought’ to do regardless of the consequences

Three major principles/assumptions: 1. The nature of morality is inherently about a community  Impossible to have a purely ‘private’ morality  not meaningful  We live in a society – must get along with one another 2. We would like to arrive at a set of moral values  The moral life of a community consists in a shared pursuit of non-material values, e.g. fairness, truth, freedom and happiness 3. In this pursuit, we need a moral code – or ultimately, law to guide us  Excludes certain types of prohibited behaviours  We need law to protect our moral code To learn about the debate on law and morality i.e. utilitarianism, liberalism (harm principle)

Utilitarian moral theory

Jeremy Bentham: Oxford educated lawyer 1789 Context

Relation to Bentham

Year of the French Revolution Britain survived both the revolution and the Napoleonic era Government remained in the hands of a privileged group Long way to go before the country became a modern democracy Reform happened slowly and through many stages Important social reformer and philosopher; a radical at the time Title indicates Bentham’s ambition to use moral principles to guide the revision and formation of law

1. Governed by pain and pleasure ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do’  

Morality is about making the world as happy as possible Morality is not pleasing God or being faithful to abstract rules

2. The utilitarian principle ‘The morally best (or better) alternative is that which produces the greatest (or greater) net utility, where utility is defined in terms of happiness or pleasure’   

The principle of utility involves evaluating an action according to its tendencies to increase or decrease happiness (its consequence) Pros and cons of each Act/policy/law  cost-benefit analysis Enables us to distinguish good and bad laws

Features   

Teleological: focuses on the goals of actions Consequential: when we evaluate, it is the result of one’s actions that matters E.g. rescue someone out of monetary return vs benevolent motive; is irrelevant

‘He who saves a fellow-creature from drowning does what is morally right, whether his motive be duty, or the hope that of being paid for his trouble’.

Contribution; the utilitarian principle is… Feature

Context

Bentham argued…

Democratic

Progressive

18th century The powerful were the rich and the nobles Utilitarian advocates questioned the status quo

Empiricist Optimistic

Taboo regarding science, based on religion and ‘morals’

Social policy ought to function the same for all persons, not just the upper class Each person’s happiness counts the same Social programs should be judged by their utility and what they deemed as ‘good’ Reformation of the penal system We only know what is good, through observation and appeal to experience Human wisdom and science will improve humanity Donated his body to UCL to prove his point

Controversial Controversy How to measure? Personal integrity Ends and means

Expansion Unclear how to measure happiness and compare the quantity of happiness in different people The happiness of ‘the majority’ vs ‘the minority’ Should the happiness of the minority always be sacrificed? Whose happiness can and should be promoted by the state? Undermines equality and distributive justice

Sandel does not support utilitarianism Point Does not give adequate weight to human dignity and individual rights

Example We will torture the alleged terrorist, but will likely not torture the terrorist’s daughter Torturing the daughter is still morally correct under the utilitarian principle

Wrongly reduces everything of moral importance to a single scale of pleasure and pain

Cigarette company Phillip Morris Czech government considered raising cigarette tax to stop people from smoking  improve health Raising cigarette tax = will increase funds for the public health sector Phillip Morris opposed:  In the long-term, smoking will not increase funds for the public health sector  Smokers have shorter life span  Save costs on health care, pensions and housing > overcome raising taxes Put human life on the scale of public

Expansion Human rights involved Protected by the Geneva Convention on regulating warfare

Car company Ford Ford designed a car which was chipped and flawed Prompted explosion when hit in the back Company were aware of this defect, but figured it was cheaper to pay compensation to the victims, than to recall all the cars

cost ‘Good’ consequences do not justify an evil deed Ignore individuality Utilitarianism on liberty = Liberalism JS Mill: Background     

Mill was a devoted follower of Bentham Important figure during the Victorian period Great writer, philosopher, thinker and brief parliamentary member (p.m) Radical views at the time  first p.m to call for the recognition of women’s rights Ambition: restore and defend utilitarianism

Mill’s major contribution Contribution 1. There is a varying quality of pleasure; pleasure should be counted in both its quality and quantity 2. Temper utilitarianism with liberalism

Context Expansion Mill had an educational, but restrictive Drawing a distinction between ‘higher education by Bentham and his father pleasure’ and ‘lower At 20, Mill had a mental breakdown pleasure’ Discovered he was incapable of emotions and dissatisfied; ‘robot’ Explained drawing a distinction ‘Better to be between higher and lower forms of dissatisfied Socrates, pleasure than a fool satisfied’ Mill introduced an element of personal liberty, freedom of thought and conscience and opinion in the formula of utilitarian calculation Adds a humane aspect to utilitarianism

On Liberty   

Subject matter: civil or social liberty Concern is to protect individual liberty against the encroachment of state authority In order to fittingly adjust between individual independence and social control:

(1) We must be worried about the tyranny of the state, including:  Political rulers  The majority; including those who claim to represent the people (2) We must be aware of social control in society  Forms of social control include: law, customs, religion and moral sentiments (liking and disliking of society)  Social control it not justified, if we have to sacrifice individual liberty Aim of Mill’s study

‘The object of this essay is to assert one very simple as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion’ – when is this justified? 1. Harm principle  State coercion and control is justified if harm is being caused  ‘The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’  Role of law: do not use legal coercion unless doing so attains some good that outweighs the loss of liberty and happiness that comes with legal enforcement  Our liberty should not be interfered, unless it affects a non-consenting third-party 2. Legitimate sphere of legal control  Also relied by Hart  Draws a distinction between self-regarding and other-regarding act  ‘The only part of the conduct of any one, for which he is amenable to society, is that which concerns others’  The three kinds of freedom that warrant highest protection; the ‘appropriate region of human liberty’:  Thought and conscience, opinion and expression  Liberty of tastes and pursuits  Of framing the plan of our life to suit our own character Controversial Controversy Introduces a quality aspect: higher and lower pleasure Has Mill introduced a moral ideal of human dignity?

Expansion Who is going to judge higher and lower pleasure? If the individual judges, how can he say that everyone would want to be like Socrates? Human liberty, human thought and conscience will not be sacrificed In introducing these core elements, has Mill introduced the moral ideal of dignity? Has he reconciled the theory of utilitarianism?

To understand Kant’s philosophy on morality: categorical imperative

Categorial imperative The metaphysics

 

The investigation of the ultimate principles, causes, origins, constituents and categories of all things Asking ‘what’ and ‘why’ we uphold these principles

Morality: what ought I do?  What gives an act moral worth?  It is not the consequences of the act, but the ‘good will’ – the right intention  Both the motive and the act are morally relevant  Consequences are not in our control; only our motives  Moral rules hold without exception in all circumstances (may not be done, no matter what)  Some things may not be done, no matter what; the ‘imperatives’ Hypothetical imperatives  Tell us what we need to do, provided we have the relevant desires  Tells us what to do is necessary so as to achieve our goals  E.g. if you want good grades, then you ought to study hard  Once we let go of our desire, the ‘ought’ loses its binding force  E.g. if you do not want good grades, you have no inclination to study h...