One is the conservative law and economics movement, whose adherents, most prominent of whom is richard posner, believe that common-law principles must be interpreted to maximize the aggregate wealth of society without regard to whether such wealth is distributed equally. Eighteen states have introduced or passed legislation requiring counseling before abortions. Since, according to this argument, the consequences of general disobedience would be catastrophic, it is wrong for any individual to disobey the law; for no person may disobey the law unless everyone may do so. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkin 1977, p. The table below illustrates some divergence in the views of the leading thinkers associated with the Harm Principle as to the proper limits of the legal coercion.
While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm. Even if an action only harms the person engaged in the activity, or occurs with the consent of others, the fact that society deems the practice immoral can be reason enough to make it illegal. So what should a state do in the here-and-now where there is no consensus, even among reasonable people, about what ought to be done? There is no genuinely moral sphere e. Serious gambling probably does get in the way of valuable options of many and does not enhance the value of the life of anyone. The Idea of Democracy, Cambridge University Press 1993, pp.
George, The Autonomy of Law: Essays on Legal Positivism Oxford: Clarendon Press , pp. In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical naturalism: 1 there can be no legally valid standards that conflict with the natural law; and 2 all valid laws derive what force and authority they have from the natural law. There is no autonomy-loss to be sure, in doing away with worthless behaviour, but that is not the point: one must factor in the autonomy-loss involved in the coercion itself. In general the kind of neutrality most often supported by the proponents of this view is neutrality of justification, rather than neutrality of effect. I will begin with the second point for this way around the first point will emerge more clearly. On this view, a person who accepts benefits from another person thereby incurs a duty of gratitude towards the benefactor. Normative Jurisprudence Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law.
On Hart's view, then, every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. This version of legal moralism goes far beyond any reasonable or legitimate state purpose. The stigma attaching to such a crime is unlikely to be much higher than for a parking offence, so again the conclusion seems to be that much can be criminalized without any serious assault on the adequacy of a person's options. It has been pointed out many times by Kantians that treating someone as a means only is not the same as treating someone as a means. More interestingly, though, does law have principled limits? The fact that the winner had purchased the ticket without the knowledge of her spouse and with money from her personal account allowed the judge to conclude that the winnings should not be subject to reassignment. Some of the disagreement is based, rather, on differences over what evidence is appropriate, how much weight should be given to the evidence where it can be agreed upon, how priorities and choices should be made among the vast range of possible values and so on.
He also as we have just seen operates with an unsatisfactory understanding of what morality is. As he was running around the pitch, we clearly would not say that he had an inadequate range of valuable options, while he was at the same time serving out a criminal sentence. Legal officials at various times and in various places have objectives and they need to find the best way of achieving them. Philosophy of Law and Legal Theory. It is impermissible for states to give false information or claims unsubstantiated by data: for example, several states assert that women who have abortions have a greater risk of breast cancer or serious depression.
In contrast to the retributivist theories that look back to a person's prior wrongful act as justification for punishment, utilitarian theories look forward to the beneficial consequences of punishing a person. George, The Autonomy of Law: Essays on Legal Positivism Oxford: Clarendon Press , pp. Further, jurists such as Jowell and Lakin argue that there is a normative standard that is antecedent to Parliament. I rebut these arguments by defending a narrow version of the right to self-ownership based on the Coase theorem as this was reconstructed and used by Richard Posner and Guido Calabresi. Constitution belongs to democratic theory and hence falls under the heading of political philosophy , the analysis of legal interpretation falls under the heading of legal philosophy. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it? In Devlin's view a society is in part constituted by its morality and it therefore has a right to defend itself against any attack on that morality. However, if fairness is to be measured by the justice achieved in each individual case, it is unlikely that a strict and certain approach would be considered fairer than the current discretionary procedure.
In order to achieve a good system of checks and balances Blackstone , we already accept that inter-institutional oversight is necessary. The prohibition of alcohol consumption may merely drive consumption underground, failing in its purpose and succeeding only in adding to the stock of societal harms as further criminality incident on the prohibition grows. Having established that legal moralism should be applied in extreme cases where radical moral wrongs have been committed, it can also be argued that private immoral acts should be prohibited by the criminal law. Unlike coercion against harmful behaviour, autonomy simply loses. Volume 1: Harm to Others 1987.
In detail the argument is this: It is commonplace to say that by coercing or manipulating a person one treats him as an object rather than as an autonomous person. At first sight it seems strange that a proponent of the claim in 1 can also be a proponent of the harm principle. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm in the Millian sense to others. This makes the job of the legal moralist a difficult one. Accordingly, on Dworkin's view, the legal authority of a binding principle derives from the contribution it makes to the best moral justification for a society's legal practices considered as a whole. The matter cannot be settled here.
The image of the tree surgeon comes to mind. They argued that the company wrongly classified them of self-employed, when, in fact, they had effective control over their work by assigning scheduled shifts and hence removing the flexible aspect of the gig economy. Common ideals of the good and beliefs about what is right hold a society together; without those common moral commitments a society would disintegrate. But this undermines Coasean dynamics because of the creation of open classes of right holders. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Where is the defence of personal autonomy? The realists eschewed the conceptual approach of the positivists and naturalists in favor of an empirical analysis that sought to show how practicing judges really decide cases see Leiter 1998.