Juris II Assign 1 - Advantages & Disadvantages OF Utilitarianism PDF

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FACULTY OF LAW UNIVERSITI TEKNOLOGI MARA

LW213 LAW511: JURISPRIDENCE II GROUP: LWPLK10AY ASSESSMENT 1: A) THE ADVANTAGES AND DISADVANTAGES OF THE UTILITARIANISM THEORIES OF EVALUATING LEGAL, MORAL AND SOCIAL PHENOMENA

B) THE ISSUE OF WOMEN AS VICTIMS OF MARITAL VIOLENCE IN MALAYSIA FROM UTILITARIAN AND FEMINIST’S PERSPECTIVES

NAME(S) & STUDENT(S) ID: NOORUL ZULAIFA BINTI AHMAD KAMAL (2015664976) NUR NAZUHA BINTI M. SUHAIMI (2015267004)

INDEX

INTRODUCTION………………………………………………………………………….. 1

FIRST PART OF STUDY

ADVANTAGES AND DISADVANTAGES OF UTILITARIANISM THEORIES OF EVALUATING

LEGAL,

MORAL

AND

SOCIAL

PHENOMENA

……………………………………………..…..………..………………… 2

SECOND PART OF STUDY

THE ISSUE OF WOMEN AS VICTIMS OF MARITAL VIOLENCE IN MALAYSIA…4

UTILITARIAN’S AND FEMINIST’S PERSPECTIVES ON MARRIAGE ABUSE ISSUE IN PROMOTING EQUALITY FOR WOMEN……………………………………………..5

CONCLUSION…………………………………………………………………………….. 7

BIBLIOGRAPHY………………………………………………………………………….. 8

1

INTRODUCTION

This first part of this study conducted on the advantages and disadvantages of utilitarianism. This study analyze the utilitarians approaches, Jeremy Betham and John Stuart Mills and their approaches in evaluating legal, moral and social phenomena.

Second part of this study discussing the contemporary issue in Malaysia where the study conducted on issue of marital violence, focusing on women as victims of marital violence. Women seems like to be downgraded and weak, shall not be give a stand on the same equal as men, and this stigma happened in marriage life, become factors of wife mostly being assaulted by their husband. The Domestic Violence Act enacted in 1994 and the latest development in 2017 in improving the protection provision for abused wife, due to increasing marital abuse report cases since the Principal Act indicates that the issue has shown no decrease in cases as the issue started from the internal and privacy conflict, in the other words, marriage life conflict. Many factors considered as the husband becomes abuser which one of the main factor; wife should be submissive and shall not stand be treated equally as their husband and dominance of husband to treat themselves to be superior to control the obedience of wives contribute to uncontrollable violence.

2

ADVANTAGES AND DISADVANTAGES OF UTILITARIANISM THEORIES OF EVALUATING LEGAL, MORAL AND SOCIAL PHENOMENA

Utilitarians is a philosophy which was popularized in England by a number of thinkers, notably amongst them were Jeremy Bentham and John Stuart Mills. Utilitarianism means that everything should be viewed with a view of utility which a thing offers. In ethics it means that rightness or wrongness of an action depends only on the total goodness or badness of the consequences of an act on the welfare of all human beings or all sentient beings.1

Utilitarianism is one of popular branches of Consequentialism, a general moral theory which emphases that the consequences we should pursue should be “happy” consequences. Utilitarians emphasis everyone count for the same and nobody counts for more than anybody else. This concept of equality promotes sensible moral theory which is the advantages of utilitarianism. Utility moral theory provide easier approach to reach conclusions, for determining which action in a given situation will increase utility. 2 In the other words consequences of action provide clear criterion that conclude morally good action as long as it is happy consequences, then it is morally permissible.

H. E. Barber, in her research, conclude that utilitarianism is good for women, as it is promotes preferences utility in providing rational of improvement economic conditions and dismantling the unjust institutions that prevent women from climbing higher on their preference rankings.3 Utilitarians provide preferentism in the account of betterness and well-being, which produce consequences of happiness. Utilitarians offers widest possible options for preference satisfaction for women so that utility may abound.

Utilitarians emphasis neutrality as this theory view an action from “God’s eye” perspective which consider everyone is equal to each other. Therefore, everyone’s status and

1 Modern Jurisprudence, Prof. Hari Chand, 1994, pg 68 2 Utilitarianism - Pros and Cons, B.M. Wooldridge, Humanities, LibreTexts, pg 1 3 Is Utilitarianism Bad for Women?, H.E. Baber, Article 6, Issue 4, Volume 3, Feminist Philosophy Quarterly, pg 1

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interests are equal and the decision made depends on circumstances that might provide best consequences for everyone involved in the action.

However, the concept of neutrality is also the weakness of utilitarianism. The concept of equality in order to make a great decision to utilize happiness, disregard the importance of personal relationship, which in need to exclude any special relations to produce greater happiness in action. According to consequences of action, impersonal are needed. Thus, family, friends, significant others and anyone else important to you counts just the same as a complete stranger when making a moral decision.4

The concept of equality promoted by utilitarians indicates only consideration of equality, not to treat everyone equally. In case of racial minority in society, utilitarian’s approaches to achieve great consequences by taking consider of majority people’s happiness, which is by eliminate the minority for the sake of quantity of people’s satisfaction. This, utilitarians might sanction morally evil actions such as genocide to achieve satisfaction and morally demanded happiness consequences.

In the nutshell, utilitarianism might help people to achieve moral conclusions than other theories do5, in promoting neutrality and equality however, in order to achieve happiness consequences, utilitarians might have to take morally problematic actions in social phenomena which is permissibly wrong and indicates flaws in this theory.

4 Ibid 5 Ibid

4

THE ISSUE OF WOMEN AS VICTIMS OF MARITAL VIOLENCE IN MALAYSIA FROM UTILITARIAN AND FEMINIST’S PERSPECTIVES

The Issue Of Women As Victims Of Marital Violence In Malaysia

Referring to section 375 of the Penal Code, before the amendment in 1989 the code was silent regarding the marital exemption in rape. The closest it went to touching the matter was through its exception, which read: “sexual intercourse by a man with own wife, the wife not being under 13 years of age is not rape. “However with the new amendment, the law regarding marital rape is now more defined. By inserting a new exception in place of the one mentioned above, the Malaysian Law has stated its stand. The exception provides“ sexual intercourse by man with his own wife by a marriage which is valid under any written law for the time being enforce, or is recognized in the federal as valid, is not rape. “The amendment went further by inserting explanation (1) and (2) of the section. Explanation (1) states: a woman:(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute or(b) who has obtained an injunction restraining her husband from having sexual intercourse with her shall be deemed not to be his wife for the purpose of this section.

In Malaysia there are no specific law governing marital rape. There is also lack of cases reported on marital rape. The same dilemma haunting the wives

as

stated

above

happens to the wives in Malaysia as well. On the amendments of Penal Code, there is light given to this issue even though not directly. Now the wife who is in a divorce or separation process, or those Muslims women in their iddah may seek protection under the

Penal

protection from

Code. There is also injunction protection for them. On one view, the marital rape

is given in Malaysia even though not specifically stated

under the statute. This is a positive reaction as person who experience violence need to be protected. 6

6 Jurnal Akademik UiTM Cawangan Johor, Marital Rape : A View On Malaysia Law and Common Law, Norazlina Bt Abdul Aziz Pensyarah Undang-Undang, UiTM Cawangan Johor

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Malaysia remains constrained by the old English presumption that a married woman is considered to have given her consent to marital intercourse by the contract of matrimony, and that consent cannot subsequently be revoked as marriage is for life. In essence, consent should be a vital part in Section 375A of the Penal Code as it is the reasoning behind why marital rape should be criminalised.

Utilitarian’s And Feminist’s Perspectives On Marriage Abuse Issue In Promoting Equality For Women

Betham, the utilitarian, indicates that the principle of the greatest happiness of the greatest number of people. Betham argued on issue for a political freedom for women as an equal voters as men. He also argue about personal freedom of women where women should be allowed to obtain a divorce, to achieve happy consequences, and also criticize double standard in sexual matters in society.7

Betham, indicates feminism approach as well he criticize men as being superior in explaining their defense to treat women as little better than slaves. His book Constitutional Code, discuss the unfairness of women position in political rights as the questions regarding exclusion of women from all participation in the constitutive power in England. He emphasis that women are excluded from their political rights not because their intellects are inferior or abilities are lacking but because men lack the maturity to work seriously and effectively with women as men associates women so much with their sexual role.8

Betham in his writing on the law of marriage are firmly based of principle of utility which greatest happiness principle’s in marriage life especially in reforming law of marriage, he indicates man and woman in union of marriage play their role equally to achieve happiness and desirable marriage. A lack of actions and compassion between husband and wife may indicate jealousy violence.9 7 Betham on the Rights of Women, Miriam Williford, Journal of the History of Ideas, Vol 36, No. 1, 2014, pg 1 8 Ibid, pg 170

9 Jeremy Betham on Love and Marriage: A Utilitarian Proposal for Short Term Marriage, Mary Sokol, The Journal of Legal History, 2009, pg 6

6

Feminism is an approach to social life about upsetting gender codes and stereotypes in order to liberate women from prescribed roles, therefore feminist theorist emphasis correction of biases which lead to subordination of women. In many traditional societies where female subordination is the norm and wife beating is common, a remarkable number of women apparently believe that if a woman leaves the house with her husband’s permission, resists his sexual advances, or even “cooks bad food”, she should be beaten.10 In other words, women as wife playing their sexual role in the way of subordination towards men, thus any disobedience are regarding as against superior which are their husband, assuming they are entitled to deliver punishment through violence upon the wife. The punishments however are not regarding as violence which wife as a woman, positioned in social subordination which treated as norm in family institution.

Feminist approaches by Carol Gilligan, she stated that women life are interpreted by men with their own lenses which reflect male’s world. Another feminist theorist emphasis equality for women means women should be substantively equal to men, in other words, equality of outcome than equality in standing.11There are triumph for women in the marital rape case of R v R in which Lord Keith stated that it was clearly unlawful to have sexual intercourse with any women without her consent and there is no implied consent for marriage couple. Marriage does not give men the right to treat their wives as chattels. In a 1991 case, Regina v R (1993 1 CLJ), the English court held that there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with the husband, therefore a husband could be convicted of rape or attempted rape of his wife where she had withdrawn consent to sexual intercourse.

CONCLUSION

‘Radical Feminists’ believe that violence against women is a reflection of the unequal power relationship between men and women. Robin Barrow summarized the utilitarian approach as the assignment of moral goodness or rightness to only one kind of consequence-effects on overall wellbeing’. Safety, security and protection of human life are one of the main responsibilities of any government under the Social Contract theory. Therefore the overall 10 Is Utilitarianism Bad for Women?, H.E. Baber, Article 6, Issue 4, Volume 3, Feminist Philosophy Quarterly, pg 12

11 Modern Jurisprudence, Prof. Hari Chand, 1994, pg 330

7

wellbeing of each individual person, places a legal duty upon any government to protect and promote these rights. Malaysia government has done a great job on developing the Domestic Violence Act to protect woman, however there are no specific law governing marital rape and it is hope to add in in the near future.

BIBLIOGRAPHY

Is Utilitarianism Bad for Women?, H.E. Baber, Article 6, Issue 4, Volume 3, Feminist Philosophy Quarterly Utilitarianism - Pros and Cons, B.M. Wooldridge, Humanities, LibreTexts

8

Betham on the Rights of Women, Miriam Williford, Journal of the History of Ideas, Vol 36, No. 1, 2014 Jeremy Betham on Love and Marriage: A Utilitarian Proposal for Short Term Marriage, Mary Sokol, The Journal of Legal History, 2009 Modern Jurisprudence, Prof. Hari Chand, 1994 Jurnal Akademik UiTM Cawangan Johor, Marital Rape : A View On Malaysia Law and Common Law, Norazlina Bt Abdul Aziz Pensyarah Undang-Undang, UiTM Cawangan Johor Malaysian Penal Code Domestic Violence Act 2017...