Abstract The question of the intersection of law and morality is one that has been the subject of debate among philosophers and jurists for centuries. In this essay the debate between Patrick Devlin and H. L. A .Hart with respect to the relationship between law and morality is explored with reference to R. v. Butler, a decision of the Supreme Court of Canada on the question of obscenity. The paper argues that in the Butler decision the Supreme Court adopted the utilitarian justification - as described by Hart - in its approval of the limitation of the freedom of expression of Donald Butler.
This essay illustrates that the separation of law and morality is both possible and impossible, depending on how one defines the phrase ?separation of law and morality?.
Abstract The essay explores the legal positivist separation thesis. It approaches the question of whether it is possible to separate law and morality from two aspects- first, the content of the law and secondly, the judicial decision maing process. The writer makes reference to the policy of removing part-Aboriginal children from their families and communities, and placing them in special purpose institutions to support his argument.
From the Paper "It has been described as ;arguably the most tragic and shameful chapter in Australia";s history.; From the late nineteenth century to the late 1960's, Australian governments carried out the policy of removing part-Aboriginal children from their families and communities, placing them in special purpose institutions. Often, these removals were carried out by force. The purpose of this removal policy was to assimilate the part-Aboriginals with the white community as the full-blooded Aboriginals were believed to be a doomed race in the sense that they would die out. A large number of the children suffered physical and emotional mistreatment following the removal from their families. The children who were removed under this policy came to be known as ";the stolen generation" This sets the backdrop against which I will discuss whether it is possible to separate law and morality with respect to the Australian court"s law making power.4 The separation of law and morality is the foundation of legal positivism. Positivists often criticize natural law theorists for blurring the line between law and morals. This essay aims, by examining three stolen generation cases, to illustrate that the separation of law and morality is both possible and impossible, depending on how one defines the phrase ";separation of law and morality."
Abstract This paper examines how occasionally disobedience may be necessary to preserve one's moral integrity. For instance, if one is directed by law to kill a human being, or to commit some other sort of heinous crime it is up to the individual to decide whether obedience poses enough of a threat to his or her moral integrity that he or she cannot continue following the law or rule. It evaluates how in most cases, however, it is in the best interests of the individual to obey and to instead amend the system where necessary. It provides examples throughout history where disobeying laws had positive results such as leaders of nonviolent protest movement (e.g., Gandhi, Martin Luther King, Jr.) who broke laws in the strict sense. It also analyzes laws such as conscription laws which can cause a travesty of moral obligations.
From the Paper "Therefore, strictly speaking, it is extremely difficult to act against a law without violating some facet of the body of law in some way. Much of our conception of changing things by "working within the system" is based on Western governmental notions of democratic government. In many other political contexts, there may be no system to work with. For instance, in a totalitarian dictatorship, such as exists in North Korea, for instance, what room is there to change the system? The very act of attempting to change any element of the system might very well be regarded as illegal. It is arguable that this can be found in United States history as well, as with the Sedition Act mentioned above."
Abstract This paper looks at Plato's writing "Apology" and how it addresses the question of the morality of following or breaking laws. The writer asks whether it is immoral to break a law or if it only becomes immoral once the law broken also breaks a moral code. This question is discussed and analyzed in detail with reference to Plato's teachings.
From the Paper "The law is a code created by man, with this code attempting to represent what is right and what is wrong. Yet there is sometimes a gap between what the law sees as wrong and what is morally wrong. Just as man is fallible, the laws created are fallible. This is recognized in Plato's Apology where Socrates says that, "human wisdom has little or no value" (Plato, Apology 23a). The fact that laws change over time is also a reflection of this, since if laws were definitely correct, they would remain fixed. In the end, an individual must distinguish between what is morally correct and what is lawfully correct. Socrates says that he would ?...run any risk on the side of law and justice rather than join you, for fear of prison or death, when you were engaged in an unjust course? (Plato, Apology 32b). This is Socrates statement showing he selects the morally correct path, rather than the morally incorrect path that the law dictates. In Crito it is described how the good moral path is the path that must be taken, "the most important thing is not life, but the good life... And the good life, the beautiful life, and the just life are the same" (Plato, Crito 48b)."
Abstract This paper studies deportations of immigrants based on crimes of "moral turpitude". The paper analyzes where courts should draw the line on these crimes. The paper begins with an historical overview of the legal precedent for the decisions. Since early in the history of U.S. federal immigration laws, explains the paper, criminal activity has been grounds for denying admission to the country, as well as for expelling or deporting immigrants. In the past decade, however, the number of deportations has dramatically increased, as the category of crimes involving "moral turpitude" has been significantly expanded. This research-based paper cites relevant case law in arguing that standards should be made more uniform.
Outline:
Introduction
Legislative History
Deportation Factors and Crimes Involving Moral Turpitude
Drawing the Line in Cases involving Moral Turpitude
Immigration Cases Involving Crimes of Moral Turpitude
Effect of Discrepancies in Cases involving Moral Turpitude or Aggravated Felonies
Conclusion
From the Paper "As a result of the legislation, crimes involving moral turpitude, which rendered an individual deportable, essentially now included every possible offense. Cancellation relief is now wholly unavailable to anyone with an aggravated felony conviction. Asylum and withholding of removal, since 1990, have been likewise barred to aggravated felons. Withholding is now possible for an aggravated felon if the sentence was for less than five years, although immigration judges retain discretion to find that a lesser offense is nonetheless a particularly serious crime barring the criminal from refugee protections. The broadening of the definition of an aggravated felony has raised many questions as to where the line should be drawn involving crimes of moral turpitude. As a result of the broadening, practically any alien who commits a nontrivial crime, is subject to automatic expulsion. This is especially true if the crime fits one of the 21 paragraphs of the new definition of an aggravated felony. This result ensues even if the alien has been a lawful permanent resident since childhood, the crime and punishment took place decades ago, and he otherwise has a completely clean record."
Abstract This paper discusses the similarities and differences between American law and Jewish law (the Halakha) in terms of change, obedience and morality. It discusses each legal systems' approach to obeying the law, law and change, and the nexus between law and morality.
From the Paper "In discussing the idea of law legal scholar Dennis Lloyd stated that contemporary law in Western society is very much the product of influences emanating from the ancient Greeks and Hebrews who individually brought a ..."
Tags: American law, Jewish law, common law, Halakha
Abstract This paper examines the purpose of the law, morality as an influence on law, and the purpose of the law under the value/consensus model, rational/contract model, and power/coercion model. It then explains the current state of the debate regarding illegal drugs and the law.
From the Paper "We can look at the law from a historical perspective and see that many of the laws we have in our society are reflective of the limits which are needed to prevent anarchy. After learning about the history of the law and social events and movements throughout our society, we are able to understand the law in a more whole and complete way. "In the latter part of the 1960s, into the 1970s, the emergence of a 'counterculture' and both a feminist movement and a gay rights movement contributed to an environment where abandonment or repeal of traditional legal proscription of some forms of sexual deviance could occur. "
Abstract This paper presents a discussion to identify the distinction between the morality - or the inherent rightness or wrongfulness of an act - and ethics - the set of standards or codes of practice that proceed from definitions and determinations of wrongfulness and rightness. The paper uses the case of euthanasia, where not only are ethics and morality an issue, but the law is also involved. After reviewing the basis for ethics and morality and its impact on lawmaking in America, the writer firmly believes what emerges from this discussion is the belief that voluntary euthanasia sought by a competent, rational, mature adult who has exhausted all medical remedies should be permitted.
From the Paper "Spong (2000) suggests that one way of framing the question of whether or not euthanasia is morally and ethically viable is to differentiate between what he calls "active" and "passive" euthanasia. In the case of the former, a physician or other actor would deliberately undertake steps to end the life of a suffering individual. Administration of medication, or even the mere participation in preparing a patient to self-administer a medication that has the potential to end life, is an active form of euthanasia. Passive euthanasia, on the other hand, would be allowing a patient to die by withholding treatment, food, life-support technologies at the patient's request."
Abstract The paper relates that different organizations, governments and people hold different philosophies by which they designate actions as either moral or immoral. The paper discusses how Emmanuel Kant, John Stuart Mill and Thomas Hobbes argue that morality is unique to the person in question and can be based on any number of criteria. The paper shows how just as there is no consensus among philosophers as to the nature of morality, there is no clear consensus over torture. The paper looks at the current international laws regarding human rights.
From the Paper "Recent historical events suggest that an evaluation of torture is apt in timing. To begin with, the terrorist acts that occurred on September 11, 2001 'dramatically demonstrated the destructive power that terrorist cells were capable of wielding on U.S. soil.' Terrorism is an unconventional form of warfare that calls for unconventional forms of response. The scale on which the terrorist attacks of September 11 wreaked their damage was well beyond any that had previously occurred, and beyond what many people believed was possible. If nothing else, these events illustrated the limitations of conventional modes of deterrence. Consequently, a poll of the American public following the attacks revealed that a substantial portion backed torture as a legitimate tool to reduce the likelihood of future terrorist attacks."
Abstract This paper describes the ancient concept of natural law, which is derived from knowledge of the nature of man. The paper provides a few different approaches to the concept, discussing, among others, Plato and Aristotle's views and beliefs of this issue. The social, political and moral aspects of natural law are examined.
From the Paper "Natural law requires a minimal moral content as a prerequisite for viewing something as in contravention of the law, while the positivist school holds that the law is whatever the state (in whatever form that exists) says it is. The concept of the natural law has the advantage of being based on something immutable, though admittedly morality may differ somewhat from one society to another. The concept of natural law was first developed in the Greek world and has been carried through to the present day. There are a number of different approaches to this concept. The Graeco-Roman tradition held that there was a natural law that was accessible to mankind through reason. Christian theorists adopted aspects of Cicero's Stoic philosophy, an example of natural law, because of its emphasis on moral content. The Christian legal philosophy that developed was in many ways a fusion between the fundamental Christian teachings and the adapted teachings of the Stoics. Natural law is the belief that there is a higher law than that of a government and that any law to be written by a government must be compared to and brought into line with natural law. This higher law is considered universally valid, and it is reached or perceived by the application of human reason."
Abstract This paper discusses the virtues that Confucius believed to be fundamentally important to society, and his idea that laws have no value in improving society. The writer explains that the rules governing filial piety, which Confucius saw as the basis of all other virtues, are not described by Confucius, since they were already a tradition in his time, but can be found to some extent in the earlier 'Classic of Rights'. The idea that the state is nothing else but the large family determines Confucius' views on the key problems of society and his view of law, and also highlights a contradiction in his philosophy. On the one hand, the ruler is to be obeyed as the head of the state and therefore of the family, but on the other hand, Confucius held that the Head of the State must be a man of exceptional moral integrity, and if not, it was the duty of a virtuous man to disobey him. The paper concludes with the writer's own views on Confucius' philosophy.
From the Paper "Confucius objected to the codification of laws and insisted on his belief that for good governance of the country the only thing necessary and sufficient is for the ruler to possess exceedingly high moral qualities. This would inspire his subjects towards goodness and filial piety. At that time the idea of two opposite methods of control appears in the Chinese political history. First of all, control with the aid of rules of decency that include the entire traditional system of moral and cultural values, and secondly the laws, which indicate extremely strict and severe regulation/forced obedience."
Abstract This paper analyzes and examines the multitude of issues concerning rape shield laws. Part II discusses why rape shield laws were and are necessary. In Part III, New Jersey's rape shield law is outlined. Part IV reviews noteworthy cases involving rape shield laws. In Part V, the pros and cons of rape shield laws are examined. Lastly, this paper concludes with recommendations concerning how and why rape shield laws should be modified.
From the Paper "Few crimes have long-term (or lifelong) impacts upon victims. Some crimes, like child abuse, domestic violence, molestation, murder, and rape, exact long-term (and often lifelong) pain upon victims. What makes rape particularly traumatizing to victims is that rape inflicts both physical violence upon victims as well as emotional trauma. Rape victims are instantaneously stripped of control, dignity, personal safety, self-esteem, etc."
Abstract This paper explains that American common law, which formed the basis for later legislatures, set the "age of sexual consent" at ten; but, today, the laws are different in different states: California, Oregon, Arizona, and Wisconsin set age 18 as the minimum age for consensual sex (for girls); most other states set age 16 or 17. The author points out that, recently, the American Civil Liberties Union (ACLU) has filed a case in a Kansas appeals court demanding the reduction of the age of consent back to 13, as was originally defined in the ?Common Law?. The paper stresses that 'age of consent law' has an important restrictive role in our present day society and serves to protect young children from undue exploitation.
Table of Contents
Introduction
A Brief History
The Present Law Controversial Reactions
Conclusion
From the Paper "Topics of such controversial nature carry arguments from both groups. One the one hand are the parents, social reformers and religious leaders who are concerned about the declining moral values and the health disorders that will result from premature sexual indulgence. This group of people is trying to raise the limit of the age of consent and hope that a legal barrier would prevent what they perceive a moral disaster and protect young and innocent children from exploitation. On the other hand are those (ACLU) who revolt against the law as an intrusion into children's personal rights. These groups consider the restrictive laws as ?a cogent and passionate critique of the war against young people's sexuality.? "
Abstract The writer of this essay examines the different philosophers in history including Aristotle, Descartes and Augustine and how their views and theories impact morality in society today. The paper also discusses society's dire need for a new morality that believes justice should be blind and lawyers not greedy, where glass ceilings disappear and affirmative action laws are no longer necessary.
From the Paper "Perhaps, until Karl Marx, philosophers with ideas used God and religion to either provide doubts or explain rational phenomena of the Human mind- including being, doubt, wisdom, and the ability to adapt. Given this thesis, one can search for some sort of compatibility between Augustine and Descartes- both believing that God is the ultimate truth, and that the doubts that seem to occur in one's life-time are human traits. If Augustine searches for truth and finds it in the Judeo-Christian concept then Descartes searches for reality, which, he claims in his Meditation, can only be found if one refuses to doubt the existence of God."
Abstract This paper uses the roles of the mothers-in-law in the novels "Tartuffe" by Moliere and "The Stone Angel" by Margarette Laurence to demonstrate how the mother-in-law can hold a considerable amount of influence over her grown and married children's lives, whatever her role or relationship with family members and in-laws.
From the Paper "Over the years, the role of mother-in-law has taken on many different forms. The stereotypical view of a mother-in-law is that of an overprotective and overbearing woman who sticks her nose into the relationships of her offspring and causes nothing but problems. While this has surely happened at some point during nearly every relationship, mother-in-laws are much more than that. Maintaining a good relationship with a mother-in-law is a very important part of any relationship because of the power that she holds over other members of the family. In fact, the entire outcome of a relationship can depend on how one handles his or her mother-in-law. In the play "Tartuffe," by Moliere, Tartuffe is able to manipulate Madame Pernelle into believing that he is a man of God who has nothing but good intentions. This allows Tartuffe to gain access to the family, despite the fact that nearly everyone else had trust issues with him. At the same time, however, in the novel The Stone Angel, by Margaret Laurence, Doris does not have a good relationship with her mother-in-law and her marriage suffers because of this."
