1. Introduction
The relationship between morality and law has always been a subject of contention in jurisprudence. Consequently, many legal theories have attempted to define the appropriate limit and scope of morality’s influence on the law. Legal moralism, as proposed by Patrick Devlin, is the belief that society has “the right to pass judgement at all on matters of morals” (375), as well as “the right to use the weapon of the law to enforce it” (376). In this essay, I argue that Devlin’s legal moralism is unacceptable on the basis of committing cultural relativism, and that its application is problematic due to its inconsistent, arbitrary and biased nature. This essay will: 1) explain Devlin’s reasoning for legal moralism; 2) object to Devlin’s legal moralism with consideration to Devlin’s possible response.
2. Moral Principles as the Basis for Criminal Law
Devlin believes that criminal law should be, and is, “based upon moral principle” (375). His legal moralism is, in part, a response to the idea that instead of actively determining between good and evil, criminal law is about “the preservation of order and
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He states that “without shared ideas on politics, morals, and ethics no society can exist” (378). To Devlin, an established morality is vital to the survival of society, and the lack of its presence can lead to a disintegration of society from within (380). Due to the importance of morality in the continuation of society, Devlin argues that society should possess the right to make moral judgements, as well as the right to “use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence” (378), since it is “entitled by means of its laws to protect itself from dangers, whether from within or without”
Moral regulation has been – and still is – a very heated topic for discussion. In chapters two and three of his book, Governing Morals: A Social History of Moral Regulation, author Alan Hunt speaks of various social organizations and their different attempts at moral regulation projects from the late 18th to early 20th century. Although the two chapters flow into each other, and time turns from one century to the next, various and complex societal changes, and in turn, approaches to moral regulation are noted. Said changes to society and regulatory approaches include evolving civil associations, the incorporation of character and females into the social sphere, and shifts away from the church. As society changes, so does the approach to, and implication of, moral regulation projects.
To the Moral Relativist, moral principles are created within cultures and communities, coming from cultural folkways and mores (Gerson Moreno-Riaño, personal communication). These principles are normative only in the culture which created them. Already, the Hippocratic Oath loses its moral weight. For example, in the 1973 Roe v. Wade abortion, Justice Blackmun dismissed the centuries-long Hippocratic tradition as merely a “Pythagorean manifesto,” relegating it to minority status (Cameron, 2001). However, relativism does not end here.
Niccolo Machiavelli, John Locke, and John Stuart Mill present three distinct models of government in their works The Prince, Second Treatise of Government, and Utilitarianism. From an examination of these models it is possible to infer their views about human nature and its connection to the purpose of government. A key to comparing these views can be found in an examination of their ideas of morality as an intermediary between government and human nature. Whether this morality must be inferred from their writings or whether it is explicitly mentioned, it differs among the three in its definition, source, and purpose.
The individuals within our society have allowed the people to assess and measure the level of focus and implementation of our justice system to remedy the modern day crime which conflicts with the very existence of our social order. Enlightening us to the devices that will further, establish the order of our society, reside in our ability to observe the Individual’s rights for public order. The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence-based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packers believed in which ones rights are not to be infringed, defrauded or abused was to be considered to be the ideal for procedural fairness.
Young, J. (1981). Thinking seriously about crime: Some models of criminology. In M. Fitzgerald, G. McLennan, & J. Pawson (Eds.), Crime and society: Readings in history and society (pp. 248-309). London: Routledge and Kegan Paul.
The entire criminal justice system can be very frightening and even intimidating if someone fails to understand the meaning of terms used, procedures, laws, and rules (Cook, 2009). Criminal law is among the terms that have been defined differently by various sources. It is mainly concerned with a system of legal rules defining actions that are classified as crimes and the manner of which the government prosecutes people who commit crimes (Snyman, 2014). According to the chapter, some sources use it in a way that is very general that describes it as the entire spectrum of laws that deal with the criminal justice system while others use shorthand ways which terms it as substantive criminal law, which is very true.
Ultimately, Rachels offers a more comprehensive consideration of the different potential interpretations of moral desert. His comparison of three legal responses using four distinction values make it very clear to the reader that, despite concerns over the value of moral desert, retribution is the most desirable option currently available to the criminal justice system. His evaluation of retributivism, deterrence and rehabilitation answers Shafer-Landau's central assertion that a comparative evaluation of retributivism could not be made within a short article. Furthermore, Rachels's argument is more pragmatic, making intuitive sense to those who may
Lippman, M. (2012). Contemporary Criminal Law Concepts, Cases and Controversies (3rd ed.). [Vitalsouce Bookshelf version]. Retrieved from http://online.vitalsource.com/books/9781452277660/5/3
‘Kantian Ethics’ in [EBQ] James P Sterba (ed) Ethics: the Big Questions, Oxford: Blackwell Publishers, 1998, 185-198. 2) Kant, Immanuel. ‘Morality and Rationality’ in [MPS] 410-429. 3) Rachel, James. The Elements of Moral Philosophy, fourth edition. New York: McGraw-Hill, 2003.
Harman, G. (2000). Is there a single true morality?. Explaining value and other essays in moral philosophy (pp. 77-99). Oxford: Clarendon Press ;.
The Law today is a summary of various principles from around the world from the past and the present. Early practises of law were the foundation of the law that we know and abide by today. These practises were referred to as the Classical school. Over time however, different criminologist have altered and greatly improved the early, incomplete ideas and made them more complete and practical to more modern times. This newer version is referred to as the Positivist school. This rapid change from the classical to the positivist perspective was due to the change and growth of civilization. Even though one perspective came from another, they are still different in many ways and it is evident when relating them to section 462.37, Forfeiture of Proceeds of Crime, and section 810, Sureties to keep the Peace. The Classical School of criminology’s time of dominance was between 1700 and 1800. Its conception of deviance was that deviance was a violation of the social contract. Classical theorists believed that all individuals were rational actors and they were able to act upon their own free will. A person chose to commit crimes because of greed and because they were evil. The primary instrument that could be used in regards to the classical school to control crime was to create “criminal sanctions that instil fear of punishment in those contemplating criminal acts” (Gabor 154). Classical school theorists believed the best defence was a good offence and therefore they wanted to instil so much fear into people about what would happen to them if they were to commit a crime that even those who were only thinking of committing a crime were impacted greatly. The classical school individuals operated entirely on free will and it was their ...
Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 3rd ed. Thousand Oaks: Sage, 2009. Print.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,
The Classical School of Criminology generally refers to the work of social contract and utilitarian philosophers Cesare Beccaria and Jeremy Bentham during the enlightenment in the 18th century. The contributions of these philosophers regarding punishment still influence modern corrections today. The Classical School of Criminology advocated for better methods of punishment and the reform of criminal behaviour. The belief was that for a criminal justice system to be effective, punishment must be certain, swift and in proportion to the crime committed. The focus was on the crime itself and not the individual criminal (Cullen & Wilcox, 2010). This essay will look at the key principles of the Classical School of Criminology, in particular