Law, Morality and Justice (4) Flashcards
What is law based on? (2)
Based on our normative positions in regards to right and wrong; there is no separating law and morality and the basics of law can get muddied when considering morality
What we think law should do and look like relates to our ideas of right and wrong
What did Aristotle believe? (2)
Believed justice to be a moral state of the world in the here and now, and could be understood by looking for the fundamental purpose in life that every person has
Differentiated between Natural Justice (arises from the nature of things and exists independent from human action) and Conventional Justice (arises from human intervention and exists as a result of human action)
What are law and justice concerned with? (3)
Both are ultimately concerned with how subjects ought to act in given sets of circumstances when different actions are possible
Justice is about choices and how we justify them and our choices are motivated by what we believe is right and wrong
Law cannot help but involved moral matters in one way or another
What did Lon Fuller theorize? (4)
Talked about the internal morality of law making as law is the enterprise of subjecting human conduct to the governance of rules
The moral authority of law making resides in the procedures through which people carry out the rule of law in a given context
Those procedures must possess a coherent and unique internal morality that implies a set of distinctive, internal rules that legal practitioners follow
Internal morality that makes law and obedience to law possible (but it’s subjective since whose morality are we following?)
What are Fuller’s 8 Requirements for Law Making to have Internal Morality?
- Generality (no ad hoc law)
- Promulgation (people must be informed of and able to know the rules)
- No retroactive law (rule-making is always prospective)
- Clarity (everyone understands it)
- Non-contradiction (the rules do not contradict each other)
- Possibility of compliance (rules do not ask the impossible)
- Constancy (the rules are not constantly changing)
- Congruence between the declared rules and official action
What did John Finnis theorize? (4)
Realization of self-evident moral truths
A natural law theory is nothing other than a theory of good reasons for choice, meaning most of us have a natural sense of what is good for us and this are able to recognize the self evident value that lie at the heart of our human morality (discover our own beliefs)
Human beings flourish best when gathered in communities and healthy communities require a common code of conduct that orders and coordinates interactions to achieve the common good
Law is such a code and order social actions in ways that enable people to pursue basic goods
What are Finnis’ 7 Basic Factors Integral to Human Flourishing?
- The valuing and transmission of life
- Knowledge for its own self
- Play
- Aesthetic experience
- Sociability and friendship
- Practical reasonableness that infuses life with an intelligent and reasonable order
- Religion or spirituality
When the law facilitated these factors, the community will flourish and only law that violates the common good is immoral
Differentiate between Fuller and Finnis (3)
Valid law must be based on morally-defensible grounds
Fuller: valid law must embrace an internal morality that materializes through rules, practices and procedures
Finnis: valid law derives its morality from a wider morality recognized by all those able to practically intuit those values with allow humans to flourish
Explain R v Dudley and Stephens
4 men on a ship, which capsizes and wrecks; decide to kill the weak cabin boy and eat him to stay alive; rescued and 2 who killed boy were charged with murder; said they had no choice with necessity as a defense
Court decided the question was if it was actually murder in their set of circumstances; necessity is of 3 sorts - conservation of life, obedience and act of God or of a stranger
Judge decided they had other options and it was not necessary
Explain R v Latimer
Man killed his daughter who had cerebral palsy, saying he was putting her out of her misery and that she was better off dead
Not necessary as there were many other choices so he was charged with murder
