Philosophy of Law Moosa

Society

A political structure as well as a moral structure "society has no business, as society, to decide anything to be wrong which concerns only the individual; that cannot go beyond dissuasion, and that one person should be as free to persuade as another to dissuade

Morality

An interconnected web and violating one strand messes the other. Of course the government is justified in defending itself against revolution

Precedent

"A judicial decision...that serves as a rule for future determinations in similar or analogous cases." (104) -this uses analogical reasoning (drawing comparisons)

Offense Principle Quote *

"It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end" (320)

Purposive Approach

"Priority in interpreting texts should be given to the purpose of the statute, contract, treaty, will, or regulation" Ex: Why doesn't the community want vehicles in the park Consider the legal system: justice, fairness, security, efficiency

Devlin quote on legal moralism

"There is only one explanation of what has hitherto been accepted as the basis of the criminal law and that is that there are certain standards of behavior or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole." (Devlin, 339)

Textual Approach

"a text must speak for itself" must be understood in the ordinary sense Makes accesible to all who follow it with regular meaning all can understand Respects the will of the law maker Sometimes called "literalism"

Paternalism

"the interference with a person's liberty of action justified by reasons referring exclusively to the welfare, happiness, needs, interest or values of the person being coerced" (Dworkin) ex: swimming with no lifeguard making suicide illegal helmet laws Mills says: the limiting of individual freedom by an authority figure for the subjects' own good

Three conditions of criminal responsibility *

(1) Voluntariness: (Could they have acted otherwise?) (2) Act-Awareness: (Were they aware of what they were doing?) (3) Normative-Awareness: (Did they know what they were doing was wrong?)

1) What was The Mann Act? Be familiar with the cases relevant cases concerning this case. How would a textualist or purposive interpreter of legal texts treat the language of The Mann Act?

1) "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce or in any territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice or compel such women or girl to become a prostitute, or to give herself up to debauchery, or to engage in any other immoral practice...shall be deemed guilty of a felony." Caminetti v. US- 4 men 2 of four brought mistresses. What was the purpose of the act. Was it intended for immoral purposes. Court decides that adultery counts as an immoral purpose Mortensen v. US- The coupe owns a prostitution house brings prostitutes on vacation. Not illegal for vacation but illegal to bring back because then the purpose of coming back is to go to work. Cleveland v. US- 6 members of mormon church polygamy. Court says act is debauchery. Polygamy rooted in alternative moral values

1) What are the circumstances of the case in Gregg v. Georgia? 2) What amendment is under debate? 3) What two arguments does the majority argue in this case? 4) How does the dissent respond?

1) Court is now deciding whether capital punishment = "cruel and unusual punishment" The defendant found guilty of robbing and killing two men while hitchhiking So his death sentence is suspended during Furman This is a new attempt to undermine the constitutionality of the death penalty Majority Ruling: No. The death penalty is not, in itself, cruel and unusual. The majority offers two arguments to demonstrate the death penalty is constitutional "Standards of Decency" Argument Implicit Method: living constitution Human Dignity Argument Implicit Method: semantic originalism 2) 8 cruel and unusual and 14 free 3) Standards of decency and human dignity 4) Brennan: DP does not respect human dignity (reduces us to the level of the criminal) The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity. Marshall: Suggests that DP is in fact excessive (the state doesn't need to do it) The evidence does not demonstrate any conclusive evidence for deterrence Notes research from those in favor and against On the Retributivist function of DP, he argues: Some suggest that there is a natural drive "blood for blood" and society needs an outlet for the drive Denies we should give credence to such urges Slightly less severe punishments can serve the same function - life in prison

1) Joel Feinberg suggests that The Harm Principle does not go far enough in limiting individual's behavior. What does he offer in its place? 2) How is his principle different from Mill's? 3) Does Hate Speech qualify as a harm or an offense?

1) He offers the offense principle 2) He writes most people are not necessarily harmed but merely offended. Thus the harm principle is more of a physical idea in which an action will harm someone physically. The offense principle is more of a mental idea in that actions that are committed are done not to harm physically but emotionally or mentally 3)I would qualify as both as if the speech was meant to incite violence then it is harmful but if it is just a protest or offensive looking act then it can be offense as well

1) Concerning how judges interpret the law, what are the benefits and drawbacks of the textual and purposive approaches? 2) What two sets of values are in conflict in the application of these two approaches? (Hint: See lists)

1) How Do You Determine the Purpose of a Statute? Ask the Author? (what if they are dead) Different lawmakers might think same law has different purpose. They might give "post hoc" explanation of the law's purpose that isn't captured in the words. 2) textual: What the text says must go (may be seen as unfair) Purposive: What the purpose of the text is the answer (fair)

H.L.A. offers three criticisms of legal moralism? Be able to explain and evaluate the credibility of his critiques.

1) LM suggest society disintegrates with the weakening of moral bonds Hart Critic: No historical/empirical support for this assumption Ex:Does deviation from sexual morality, even if done in private, lead to the decline of society? 2) LM suggests that morality is a seamless web, violation one part can crash the whole thing -lying=stealing=gambling=hooker Hart Critic: No good evidence here either Ex: Polygamy does not have to equal complete moral corruption Atheists (in past societies) could respect others rights, abide by moral norms 3) LM suggest that violating public morality is tantamount to rebellion against government Ex: Yes, activities that harm innocent people surely harms our social fabric. But private activities between consenting adults? And aren't deviations from public morality part of society's process of change

What critiques does Scalia make of the idea of a Living Constitution?

1) Limit democracy: 2) No guiding principle for constitutional interpretation Originalist: has this by trying to find original meaning of text 3) Politicize constitutional law -says the constitution is about who has power not about framework 4) Threat to individual rights -bill of rights to protect individual must have a fixed meaning

1) What are the circumstance of the case in McCleskey v. Kemp? 2) Why does this case focus on the 14th Amendment's equal protection clause? 3) Why does the majority refuse to overturn McCleskey's death sentence? 4) How does this case present the evidence based and cognitive problems associated with demonstrating racist intent?

1) The defendant in this case has been convicted of killing a police officer while robbing a furniture store with four other men. He admits to the robbery, not the murder Acquaintances testify that he admits to shooting the officer 2)The question is not his guilt, but. . . Whether the death penalty qualifies as "cruel and unusual punishment" b/c --> It is being inflicted unequally upon the convicted McCleskey's Argument Georgia imposes the death penalty in a racially discriminatory way. Why is this a problem? 14th Amendment equal protection clause: "equal protection of the law" The Baldus Study: racial patterns of over 2,000 murder cases in Georgia 3) But doesn't the state as a whole violate the 14th Amendment by allowing a policy that is racially discriminatory in its application? Court: No. Again: you must prove that the state adopts the policy "because of" its racially unequal effects. . . not only "in spite of" those adverse effects on one group. What does this mean? You need to prove that their policies are intentionally racist 4) Evidence Problem: Proving someone (a prosecutor, judge, jury) had conscious and deliberate intent to racially discriminate is difficult. How would you prove that? Bigger problem.. Cognitive Problem: what if the judge/jury don't even realize they are influenced by racial attitudes? Maybe they think they are being "color blind," but what if their decision is informed by implicit racial bias?

1) According to a Retributivist, what is the proper aim of punishment? 2) For what purpose is the government justified in inflicting punishment on individuals on this view? 3) Why is proportionality of punishment inherent to retributivist theory (but not utilitarian theory)? 4) What critiques may be raised about the retributive theory of punishment?

1) To make an individual pay for the crime" Literally: "pay back" 2)Concerned with fairness and justice more than effectiveness Giving an individual a fair sentence (i.e., proportional to their culpability) is the primary value of the criminal justice system. This concern with proportionality means that retributivists can never justify punishing an innocent person or excessively harshly (like utilitarianism). This theory takes individual rights (even of criminals) seriously. Key Idea: punishing people as much as, but no more than they deserve. Anything else is unfair and a violation of individual rights. 3) Excessive Punishment: the individual is "paying back" too much Lenient Punishment: the individual is not "paying back" enough --(1) Gravity of Crime (e.g., how harmful, how morally wrong) x --(2) Individual's Level of Responsibility 4) Pointless: Seeking retribution for the victims of crime might be satisfying. . . Especially on an emotional level. But, is getting "pay back" a good enough reason to use so many social resources on punishment? Shouldn't something so costly create social benefit? (Utilitarian response) Bad for the Soul Yes, retributivism might be emotionally satisfying: Anger, indignation, guilt, etc. are powerful emotions. And, yes, "lex talionis" is a piece of biblical wisdom. But, isn't this idea a bit too "Old Testament"? Aren't there great moral teachers that have other lessons: Turn the other cheek? Judge not, lest ye be judged? Does this "New Testament" style wisdom warn us against retribution?

1) According to a Utilitarian, what is the proper aim of punishment? 2) For what purpose is the government justified in inflicting punishment on individuals? 3) What critiques may be raised about the utilitarian theory of punishment?

1) To prevent crimes because it causes pain, suffering, and instability and allowing for the betterment of the person Greatest happiness principle 2) "Utilitarianism maintains that actions, institutions, and social policies are morally justified insofar as: They bring about more net social good (or happiness or well-being) Than any alternative action, institution, or policy." (262) 3) Punishment itself doesn't work that well as a deterrent Deterrence is infamously hard to prove Heavy policing of the 70's and 80's -> have we seen a reduction in crime stats Depends where...

1) Gerald Dworkin offers an argument in favor of government's use of paternalistic laws. Why are, on his view, paternalistic laws warranted? 2) What reasons does he give for adopting some paternalist laws? Be able to discuss a specific example (e.g., seat belt laws, motorcycle helmet laws)

1) We take out the insurance against making decisions which are far reaching, potentially dangerous and ir- reversible. 2) -"Better ten men ruin themselves than one man unjustly deprived of liberty

1) What form of reasoning do judges use in interpreting case law according to existing precedent? 2) How does this task change in easy vs. hard cases, and in cases where there is no precedent?

1) What past cases are relevant to this new case? Which case is it most similar to? How is it different from other cases? 2) Easy Cases: Clear analogy between new case and an existing precedent. There is a "fit" between the facts of each case. To decide new case, apply the principle/rule of old case to the new case Hard Cases: Any case that has no obvious precedent Various Possibilities, but all imperfect analogies Conflict between possible precedents Debate is about which case is the most relevantly similar and how the case applies to the new one No precedent: courts are willing to deviate from past decisions if social/economic/political changes requires the law to adapt.

1) According to John Stuart Mill, under what circumstances can the law intervene in people's lives to limit their freedom? 2) What justifications can be offered for the principle Mill creates in answering this question? 3) What is the difference between the public and private spheres, for Mill?

1) When it could be physically harming to someone 2)For we have a right to choose the society most acceptable to us. We have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom he associates. We may give others a preference over him in optional good offices, 3)Public Spheres: Actions that affect other people - Private Sphere: Your home such that you have personal issues that may affect family or yourself inside your home

What are the circumstances of the case in Griswold v. Connecticut? Be able to explain the role of loose constructionism and substantive due process in the majority's decision. (Hint: consider the existence of a right to privacy)

1956 SC Case Landmark decision Concerns the constitutionally of a Connecticut law prohibiting the use of contraceptive Big issue for constitutional interpretation: SC ruled constitutions protects a right to privacy Problem: the constitution never explicitly says this Substantive due process: principle that says due process doesn't just protect our access to a fair procedure - protects certain rights unrelated to procedure (privacy) -even if right no specifically stated in constitution -penumbra (casts a shadow) -married couples and their private decisions about their life -while some liberty is taken away: must show "rational and compelling interest for why subordinating individual rights must take place

Rule Utilitarianism

Actions are morally right if they conform with a legitimate moral rule that maximizes overall utility

Act Utilitarianism

Actions are morally right when they produce the greatest good for the greatest number of people

What are the circumstances of the case in District of Columbia v. Heller? How is Scalia's Originalism on display in the majority opinion on this case? How does he defend the majority opinion? What forms of legal interpretation are evident in the dissenting opinion?

All people who wanted to own guns in DC different groups of people. Heller applied for gun license to see in home had it denied He states the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written Dissenting opinon: stated it was the right to maintain a militia

How Do You Determine the Purpose of a Statute?

Ask the Author? (what if they are dead) Different lawmakers might think same law has different purpose. They might give "post hoc" explanation of the law's purpose that isn't captured in the words.

Interpretation

Attaching meaning to words Formal Process: When judge interprets the law the interpretation becomes official

Benefits of the Purposive Approach

Avoid Bad consequences of textual interpretation, pragmatic, flexible

What is Stare Decisis? What values are served by obeying this principle of legal interpretation?

Benefits: -Stability, Reliability -Certainty, Predictability -Equality, uniformity in treatment -Efficiency Problems: -Static -Inflexible -Too Conservative-Stuck in the Past

Crime

Conduct which (if duly shown to have taken place) incurs a formal and solemn moral condemnation from the community

How is statutory interpretation different than constitutional interpretation? What makes the latter more difficult?

Constitutional: The process of determining whether a piece of legislation or governmental action is supported by the constitution Statutory: Methods and tests used by the courts for determining the Maning of a law and applying it to specific situations. Congress may overturn the courts' interpretation by writing a new law It is difficult because the constitution is a general framework for a system of government with basic principles, rights, powers. Not every case is covered with the constitution

Be able to compare Devlin's answer to: "What is the scope of the law?" to other relevant philosophers on this question (Mill, Feinberg, Gerald Dworkin)

Devlin: Reasonanble person standard Mill:

The Mann Act

Don't move women across state line for debauchery or immoral purposes

Legal Moralism *

Enforce morality on to others or the community It is the business of the law to enforce morality...as well as prevent/deter harm "There is only one explanation of what has hitherto been accepted as the basis of the criminal law and that is that there are certain standards of behavior or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole." Devlin

Culpability

Excessive Punishment: the individual is "paying back" too much Lenient Punishment: the individual is not "paying back" enough Must be turned to proportionality: Punishment must be equal to the individual's culpability Culpability = (1) Gravity of Crime (e.g., how harmful, how morally wrong) x (2) Individual's Level of Responsibility

Retributive Theory of Punishment

Punishment is justifiable b/c the criminal deserves it Not for rehabilitation, or deterrence, social utility

Originalism *

Interpretation Must Seek the original meaning or intent of the Constitution. Ambiguity: Original Intent or Original Meaning? Usually: textualist, formalist

General v. Specific Deterrence

General Deterrence: prevent others from committing crime by subjecting this individual criminal to punishment Sets an example Specific Deterrence: prevent the individual you are punishing now from future crime Incapacitation

Who wrote "Paternalism"

Gerald Dworkin

Loose Constructionism

Interpretation of Constitution must recognize it is a document with a dynamic meaning that is sensitive to changes in society. The Living Constitution Usually: purposive, realist/pragmatist -Constitution has a dynamic meaning or it has the properties of an animate being in the sense that it changes

Harm *

to directly impair one of a person's important interests without that person's consent

The Offense Principle *

Feinberg states its an act in which it causes "universally disliked mental states" -The government is justified in interfering with peoples offensive behavior when those acts are: actually "wrongful", they can't be effectively dealt without government intervention -Extreme Disgust

Mens Reas *

Guilt mind

Actus Reus *

Guilty Act

Who wrote "Critique of Legal Moralism"

HLA Hart

What reasons does Scalia offer for adopting Originalism?

He says interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction)

Tyranny of the Majority

How much can collective opinion (majority) interfere with individuals lives. Ex: Affordable Care Act, Patriot Act, Digital Millenium Copyright Act He asks how far can laws created by democratic majorities go

The reasonable person standard *

Idea of a general person who acts what the normal person is expected to act like hypothetical person in society who exercises: average care, skill, and judgment in conduct serves as a comparative standard for determining liability

"Standards of Decency" Argument

Implicit Method: living constitution Interprets the meaning of the 8th Amendment by reference to: "...the evolving standards of decency that mark the progress of a maturing society." (513) Look for what they call "objective indicia" demonstrating public attitude Really figure out the public's feelings on what counts as "cruel and unusual" The Majority evaluates Historical evidence: Indications that the death penalty has been seen as acceptable in the past Inherited from English law - first instance 1608 (Spanish spy) Constitutional evidence that the death penalty was supported by framers 14th Amendment (If this is all they offered expectation & historical originalists) Today's standards, people still advocate its use

Baldus Study

In murder cases, what percentage received the death penalty when: Black Defendant/White Victim: 22% White Defendant/White Victim: 8% White Defendant/Black Victim: 3% Black Defendant/Black Victim: 1% Prosecutors seek death penalty in what % of cases: Black Defendant/White Victims: 70% White Defendant/White Victims: 32% White Defendants/Black Victims: 19% Black Defendants/Black Victims: 15% Summary: taking account of 230 variables, the race combination of the defendant/victim best predicts the chance that a defendant will receive a death sentence: Defendants charged with killing white victims are 4.3 times more likely to receive a death sentence than those charged with killing a black victim

Devlin's Legal Moralism Claim

It is the business of the law to enforce morality. As well as prevent/deter harm

1) Devlin crafts an argument by analogy to argue for the law's place in enforcing public morality. What is his argument? 2) Is it convincing? Who decides what, for Devlin, "public morality" is? *

It is the viewpoint of the man in the street-or to use an archaism familiar to all lawyers-the man in the Clapham omnibus. He might also be called the right-minded man. For my purpose I should like to call him the man in the jury box, for the moral judgment of so- ciety must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous. This was the standard the judges applied in the days before Parliament was as active as it is now and when they laid down rules of public policy.

Utilitarian Theory of Punishment *

It provides an account of how to determine if actions, institutions, and policies are morally good. Use the GHP (act or rule varieties)

The Harm Principle *

JSM "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" -Common saying: My liberty to swing my fist ends where the next person's nose begins

Who wrote "The Offense Principle"

Joel Feinberg

Who wrote the "Harm Principle" and "Paternalism"

John Stuart Mill

The Greatest Happiness Principle

Key principle of Utilitarianism -Act in ways that provide the greatest amount of happiness for the greatest number of those effected by your actions

Stare Decisis

Legal precedent Two things typically used to decide court cases: 1) Statutes-why we discussed textualist v. purposive 2)Case law- interpretation of precedent

Who wrote "Legal Moralism"

Lord Devlin

What makes a moral rule legitimate

Maximize net utility for society

Substantive Due Process *

Principle that says due process doesn't just protect our access to a fair procedure It also protects certain rights unrelated to procedure (privacy) Even if there the right is not specifically referenced in the Constitution

Ronald Dworkin argues that Scalia is not, in fact, the Semantic Orientalist which he claims to be. What kind of interpretation does, on Dworkin reading Scalia use in his interpretation of the Constitution?

Says he argues that Scalia misses an ambiguity in his view Ultimately undermines his own argument -> "schizophrenic nature" Semantic intention: what someone intends to say when they use certain words Expectation intention: what someone intends (or hopes, expects) to happen or be consequences of them using those words Dworkin says he is EO

Two sets of values

Stability, Predictability, Equality of Treatment, Efficiency v. Flexibility, Pragmatic, Attentive to Social Values, Policy Goals

Syntax v. Semantics

Syntax: The arrangement of words and phrases to create well formed sentences in a language Semantics: The meaning behind the words

Human Dignity Argument

The 8th Amendment requires more than showing that society accepts a certain form of punishment. It must also be asked... "...whether it [the punishment] comports with the basic concept of human dignity at the core of the Amendment" ? What is human dignity? Some kind of inner significance that sets humans apart from other beings in terms of how they ought to be treated One's life is intrinsically valuable-->deserving of respect 2 Criteria for Respecting Human Dignity: Does the punishment impose "unnecessary and wanton infliction of pain" (513) Meaning: Does it serve a legitimate aim of punishment? Is the punishment is proportional to the severity of the crime. (513) Is the Death Penalty Necessary? What social purpose does it serve? Retribution? Definitely Deterrence? Inconclusive evidence (some cases obviously, some cases not so much) Is the Death Penalty a Proportional Punishment? In Gregg's case, yes. "It is an extreme sanction, suitable to the most extreme crimes." (514)

What are three approaches to how far can the law go in interfering with individual liberty

The Harm Principle (JSM) Paternalism (Gerald Dworkin) Utilitarianism Legal Moralism (Patrick Devlin)

Common law (case)

The body of rules and principles hat have been developed on a case by case basis over the years

Expectation originalism

The right bearing clauses of the constitution should be understood to have the consequences that those who wrote them expect them to have

Who wrote "Interpretation"

Tony Honore

Indirect Harm *

an action that negatively affects another's interest only by first affecting one's self

Hate Speech

attacks a person or group on the basis of attributes such as race, religion, ethnic origin, national origin, sexual orientation, disability, or gender

Offense *

behavior that causes other individuals discomfort

Semantic originalism

suggests that the rights granting clauses of the constitution must be read to say what those who wrote them intended to say Can be broken down into two: Historically Focused Meaning: -Assume that the words in the amendment still mean what the writers of the amendment assumed them to mean at the time it was written Principle-Based Meaning: -Assume that the framers were crafting an abstract principle or rule with their wording, understanding that it could be updated given new historical contexts

Implicit Bias

the unconscious attribution of particular qualities to a member of a certain social group