Philosophy of Law

The proper aims of law have been debated and tested through legislation and case law from the early start of America. Although it is clear that common good for society as a whole should be a prime consideration in creating and implementing law, the specifics of why laws are made are still being debated today. Three influential philosophers, John Stuart Mills, Gerald Dworkin and Devlin have brought great insight into the proper aims of law.

John Mills presented the argument that “acts that directly diminish another’s well being… failure to perform identifiable obligations one may have to others… [and] failure to perform one’s share of what is required for a decent common life in society” (Murphy, 2007, pp. 83, 84). Gerald Dworkin proposed “legal restriction… to protect or promote the subject’s good” (Murphy, 2007, pp. 94-95). Devlin believed in the importance of morals in the “interest in the preservation of society” (Murphy, 2007, p. 101). All of these philosophers brought perspectives that have aspects of validity and are still applied today.

In controversial issues such as statutory rape among consenting teens, abortion, capital punishment, assisted suicide and mandatory car insurance, the debate over which aim is right and proper still rests on which philosophical aim of law is applied. As society advances and values change, so will the debates over which aim is best for each issue, though it is clear that a complete depiction of the proper aims of law involve a combination of all theories. This is an excellent opening paragraph! You stated the purpose of the paper and focused on the philosophers in Chapter 3 and the issues you have selected to address.

Well done! Statutory rape among consenting teens is one issue in fierce debate today. In the state of Wisconsin, two teenagers, ages sixteen may have dated for two years. Although young, they decide to have sexual relations with each other. Wisconsin Criminal Code; 948:09 dictates, in reference to sexual intercourse with a child sixteen or older, “whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of sixteen years is guilty of a Class A misdemeanor” (Wisconsin Government Statutes, 2010, p. 30).

by the letter of the law, two consenting teenagers would both be victims and perpetrators for the crime of statutory rape. The punishment could include time in jail, fines and/or registration as a sex offender as “crimes which mandate inclusion in the sex offender registry are… first or second-degree sexual assault of a child” (State of Wisconsin Legislative Reference Bureau, 2004, p. 2). The aim behind statutory sex offender laws is that “[s]tatutory rape laws assume that all sexual activities involving individuals below a certain age are coercive.

This is true even if both parties believe their participation is voluntary” (Glosser, Gardiner, Fisherman, 2004). From the perspective of Mill, the crime of rape is harm done to another. Laws forbidding rape would be justifiable. However, in statutory cases in which each party consents it may be a different case. Mills asserted that “…unless it can be shown that the actions… [generate] harm to others, there is no legitimate basis for legal restrictions” (Murphy, 2007, p. 84). Laws used to prosecute either teenager in this example would be improper according to Mill.

Solid analysis! Devlin however might argue that the use of law is fitting in this example. “Devlin’s view was that we have a strong interest in enforcing positive morality through law, and that while there might be countervailing reasons against doing so on many occasions, we cannot fence off a zone in which morals legislation is not allowed to intrude” (Murphy, 2007, p. 101). In Devlin’s view, the morality behind preventing underage sexual relations may be reason enough to warrant such a law as a preventative measure.

Further, the law as a whole was meant to deter overage citizens from taking advantage of underage children, so the use of the law has overall moral appeal that should not be undermined by single cases. In conjunction with those theories presented, the safety of minor’s from rape or molestation is a major priority. Sexual assault of a minor is an abhorable offense which undercuts the moral fibers of any community. Therefore, the intent of the law to prevent harm to minors is noble, but should allow room for those dating other minors not to fall into the category with adults preying on children.

Less severe penalties may be imposed for preventative measure and the well being of children, but the proper aim of law is not upheld when minors are charged with the same crime they are labeled victims of. Very interesting discussion of this issue. You properly applied the views of the philosophers in analyzing the arguments presented. Abortion is another controversial issue that has sparked fierce debate in America since 1973 and has been raging since. In Roe v. Wade, 410 U. S. 113 (1973), the court “affirmed the judgment holding that abortion was within the scope of the personal liberty guaranteed by the Due Process Clause.

This right was not absolute, but could be regulated by narrowly drawn legislation aimed at vindicating legitimate, compelling state interests in the mother’s health and safety and the potentiality of human life. ” Since then the issue of right to life versus right to privacy has ensued. As stated in Roe v. Wade, ““The right of privacy, however based, is broad enough to cover the abortion decision; the right, nonetheless, is not absolute and is subject to some limitations; at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

” Need a citation here to the specific page number from the case. From John Mill’s view of the proper aims of law, it may be hard to decide whether allowing or restricting abortion is a legitimate law. Although the woman has a right to privacy, a right greatly protected through Mill’s doctrine, the right to the life of the baby competes with that right. Mill’s voiced his support of self preservation as strongly as his support to privacy. On one hand Mills argued that “…the subject himself or herself is more likely to know what actions are for his or her happiness than the lawmakers are” (Murphy, 2007, p.

87). He further argued that “an important value to the fact of choice itself, a value that is independent of the wisdom or correctness of the choices that one Makes” (Murphy, 2007, p. 87). In contrast, Mill also argued “…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Murphy, 2007, p. 83). In cases for which a mother chooses to end pregnancy for the purpose of not wanting to be a mother, it would sound as though the child be allowed laws for the protection from harm.

If the mother were in danger of dying from pregnancy or birth that would be another matter as Mill claimed “…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” (Murphy, 2007, p. 83). This could work both in the favor of personal rights or something is missing here?? Thorough discussion of Mill’s views. Although Mill’s stance is not clear on the matter of abortion, Dworkin’s aims of law are clearer.

According to Dworkin, “legal restriction… [is applied] to protect or promote the subject’s good” (Murphy, 2007, pp 94-95). With this rationale, the ‘subject’ may be either the baby or the mother, and both must be protected from “foreseen poor choices” (Murphy, 2007, p. 95). The subject’s good, also applied to the unborn baby, and may require laws for protection of self, self meaning the baby as an extension of the mother. With that rationale, harming the baby may also be construed as harming the self, and laws created to prevent harm to one’s self are proper aims of law.

On the issue of abortion, the rights to privacy by a mother are trumped by the right to a baby’s self preservation unless the mother’s right to life is at risk by the pregnancy, in which the mother’s right to self preservation should be upheld. Interesting discussion and solid application of Dworkin’s views to this issue. Capital punishment is an issue which has been decided on differently among the states. While the death penalty is upheld in states like Texas, it is denied in Wisconsin and among other states. In “Gregg v.

Georgia need full case citation (1976), “…the justices announced that punishment by death is not per se cruel and unusual under the Eighth Amendment, and that ‘guided discretion. ”’ Need citation here. However, Woodson v. North Carolina need full case citation (1976) showed that it is unconstitutional to force capital punishment. Ford v. Wainwright need full case citation (1986) took the issue farther, “recognizing that the Eighth Amendment forbids the capital punishment of offenders who have become “incompetent” for execution, and requiring minimal procedural safeguards for resolving incompetency claims.

From a Dworkin standpoint, the aim of law is justified. Dworki n asserted that the “physically immature, mentally ill, or developmentally disabled need paternalistic guidance just so that they will not act in ways that destroy whatever limited capacities for autonomous action they possess and or may someday possess” (Murphy, 2007, p. 95). By this logic, paternalistic guidance would extend to protecting those deemed incompetent to defend themselves. They are not capable of personal representation for cases involving the death penalty so it would be cruel to enforce it upon them.

Therefore, it would be cruel to impose death on those who may not understand the charges and are unable to present their cases against loss of liberty or life. Good application. So, would Dworkin support the death penalty for those who are not “incompetent? ” Mill was concerned with harm done to others and the autonomy of personal freedom. His intent for law did not touch on issues of those who are incapable of protecting against incrimination, or whose actions were caused by mental illness. But, what would do you think he would say.

Is there harm to others caused by these individuals? Therefore, Dworkin’s aim of law provides a better explanation in the case of capital punishment. Assisted suicide is an issue that has sparked outrage and sympathy among a vast group of citizens. The issue was first sparked in 1990 when a “family having requested the termination of life-sustaining treatments of their vegetative relative” was struck down in court “for lack of evidence” of the wishes of the patient. Cruzan v. Dir. , Mo. Dep’t of Health, 497 U. S. 261 (1990).

The debate proceeded when physicians supporting assisted suicide for terminally ill patients challenged the doctrine. In Washington v. Glucksberg, 521 U. S. 702 (1997), the Supreme court ruled assisted suicide as unconstitutional since the “ right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. ” According to Mill, this law would be a breach of personal rights of autonomy as the patient is only harming him or herself.

Dworkin, however, would declare this a proper aim of law as “the choice to commit suicide is pretty obviously life altering– often arise under conditions of psychological distress and panic, and with inadequate opportunities for deliberation. Thus even if legal proscription is not justified, perhaps some legal requirement to wait before acting might be justifiable. ” (Murphy, 2007, p. 96). I concur with this claim as assisted suicide not only makes the physician an accessory to murder, as harm to others a proper aim of law not debated among legal philosophers, but also it pervades the ideas of self

preservation and lowers the value of life in the eyes of the law. A court system that prosecutes those committing murder, while allowing it by others, is biased and conflicting in nature. As Devlin so aptly put it “we all have an interest in the preservation of society” (Murphy, 2007, p. 101). Excellent discusson and analysis! Mandatory car insurance is a less debated topic, though still posing a great argument for the proper aim of law. “As of 1st of June, 2010, car insurance laws for drivers in Wisconsin have changed” requiring all Wisconsin drivers to carry car insurance with minimum requirements” (Tax Articles Directory, 2010).

The intent was to prevent those innocently harmed in car accidents from being stuck with the bill for damages. ““The minimum car insurance limits, according to the new Wisconsin law, are::$50,000 – Bodily Injury or Death of One Person $100,000 – Bodily Injury or Death of Two or More People $15,000 – Damage to the Property of Others” along with additional insurance for uninsured or underinsured motorists, (Tax Articles International Directory, 2010). The right to choose whether or not a person should have insurance should rest on the individual’s choice. Mill supported the choice in personal freedom to make bad decisions.

Although he believed in laws to protect against harming others, he made no specific mention of preventative laws implemented on how a person should specifically pay for wrongs committed. Whether or not a person is insured, the injury still occurs in automobile accidents. Insurance is a gamble, so forcing citizens to take a gamble would be against Mill’s doctrine of law. Dworkin believed in protecting a person from his or her own poor choices, but again, this would apply to laws preventing an accident; not the specific form of reimbursement for the wrongs committed.

It is my belief that this law does not fulfill the proper aim of law and over reaches the authority that should be left to each citizen. Again, another solid use of an example to illustrate the issue. In each controversial issue, different beliefs on the proper aims of law were presented, contributing to a better understanding of how to approach different legal issues. No single theory could adequately explain or justify every law, but together they form a complete understanding of how and why law is applied.

References Glosser, A. , Gardiner, K. , Fishman, M. , (2004), Statutory Rape: A Guide to State Laws and Reporting Requirements, Office of the Assistant Secretary for Planning and Evaluation, Department of Health and Human Services, http://www. hhs. gov/opa/pubs/statutory-rape-state-laws. pdf . Murphy, M. C. (2007). Philosophy of Law (pp. ). Malden, MA: Blackwell Publishing. Olszewski, (2006), Statutory Rape in Wisconsin: History, Rationale, and the Need for Reform, Marquette Law Review, http://law. marquette.

edu/lawreview/Spring%202006/Olszewski. pdf . State of Wisconsin Government Statutes, (Enacted1989), Crimes against Children, p. 3, http://legis. wisconsin. gov/statutes/1989/89Stat0948. pdf . Current law. State of Wisconsin Legislative Reference Bureau, (2004), Sex Crimes and Penalties in Wisconsin, p. 2, http://legis. wisconsin. gov/LRB/pubs/ib/04ib3. pdf . Tax Articles International Directory, (2010), http://www. taxarticles. info/2010/08/wisconsin-auto-insurance-new-laws-requirements-june-2010/ .