Presentation is loading. Please wait.

Presentation is loading. Please wait.

MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist) 1.

Similar presentations


Presentation on theme: "MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist) 1."— Presentation transcript:

1 MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist) 1

2 Q: WHAT IS LAW? … MORALITY? Morality: – Basic Beliefs of a Society Re Appropriate Behavior Law: – The “Official” Rules of Society Which Are Enforced How Do – Should – They Relate to Each Other? 2

3 OLIVER WENDELL HOLMES 2 Approaches to Law/Morality Connection: POSITIVISM – Law Is an Entity in Itself NATURAL LAW – Laws ARE – & SHOULD BE – Based on a PRE- EXISTING Code of Morality 3

4 NATURAL LAW Emphasizes Connection Between Law & Morality Based on Pre-Existing Code of Morals EX: 10 Commandments … Koran … etc. Is This True? How? What Circumstances? When Might It NOT Be True? 4

5 POSITIVIST APPROACH TO LAW Law Viewed as Entity in Itself – Apart from Morality Societies – esp. Modern Societies – Make Laws … To Ensure Smooth Interpersonal Relations … Among Persons Who May Not Agree on the Basic Moral Code Is This True? When? What Kinds of Cases? – (Traffic Laws, Interstate Commerce, Sex, etc.) Max Weber’s View of Law in Modern Societies 5

6 Q: WHAT CONSEQUENCES FLOW FROM THIS CONTROVERSY? Does It Matter Which Approach We Take? What Happens If We Disagree Over the Basis? What Different Kinds of Laws Would We Have? EX: Sex … ? Drugs & Alcohol … ? EX: Murder … ? Stealing … ? EX: Suits Filed by ACLU, Amer. United for Separation of Church & State  Force Removal of Religious Symbols EX: Southern Poverty Law Center re Hate Crimes 6

7 LON FULLER: EXPANDS LAW-MORALITY ISSUE Fuller: Former Harvard Law Professor 2 Moralities on Which to Base Law: – “Natural Law” – Humanity’s “Basest Nature” 7

8 FULLER: MORALITY OF DUTY Law Based on "Humanity's Basest Nature" Assumption: People Will Always Have Nasty Habits! Law Can't (Shouldn’t) Do Much About That! Contrast: Some Things People MUST Do (Or Avoid) Many Issues: Individual Behavior Doesn't Matter for Society Law Should Only Force What’s Absolutely Necessary! Law Should NOT Try To Force People To Be Good! Fuller Terms "MORALITY OF DUTY” – Clearly Prefers! 8

9 FULLER: MORALITY OF ASPIRATION Based Upon Assumption That "Nature's God" Has Set Immutable Foundations of Morality Law Should Be Based on This Foundation. Tells Everyone What S/He Ought to Do … Law Should Aim To Force Everyone to Do It! Fuller Calls It "MORALITY OF ASPIRATION" E.G., Law Should Encourage (Force?) People to Aspire to Be The Best They Can Be 9

10 SUMMARY: Morality of Aspiration vs. Duty What Behaviors Would Be Banned Under Morality of Aspiration? … Under Morality of Duty? Which Is Preferable? Which Would Be More Enforceable? Is Morality of Aspiration Possible In a Modern, Complex, Multicultural Society? Cf. Max Weber, Lon Fuller 10

11 APPLYING THE MORALITY OF DUTY: MORRIS & HAWKINS (c. 1970S) The Honest Politician’s Guide to Crime Control They Basically Accept Fuller’s Notion of Morality of Duty (Though Do Not Quote Him) … As the Basis for Law Book Outlines How to Implement this Idea in Modern U.S. Society 11

12 MORRIS & HAWKINS (ctd) “Every Man Has An Inalienable Right To Go To Hell In His Own Fashion …” (p. 2) Therefore: Remove Non-Essential Acts from Criminal Law – All “Victimless” Crimes (7): – Drunkenness (NOT Drunk Driving) – Narcotics & Drug Abuse – Abortion – Gambling – Disorderly Conduct – Sex Offenses Between Consenting Adults – Juvenile Status Offenses Have a Standing “Law Revision Committee” – Periodic Corrections to Delete Non-Essential Items 12

13 MORRIS & HAWKINS CONSEQUENCES Think About Consequences of Proposal Would It Be Accepted? By Whom? What Would People Disagree About? Who Would be Likely to Disagree? 13

14 . DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS Some People Likely to Disagree with the Positivist Principle Have a Preference for a Natural Law Approach Particularly Among Religious Leaders Also Among Very Religious People 14

15 DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS" Even People Who Agree In Principle That the Criminal Law Should Not Include Private Behavior Might NOT Agree With One Item or Another EX : Abortion Not Victimless (Baby as Victim) Gambling And Drug Abuse Victimize Families Considerable Disagreement Over Which Items to Include in Law 15

16 FEASIBILITY OF MORRIS & HAWKINS How Likely Is It That Such a Program Would Be Accepted? THEY Recognize It Has Little Chance (1970s!) Politicians Could NOT Espouse It … Unpopular Removal of Sanctions = Support for Behavior Politicians LIKE the POWER Criminal Law Gives Them! (cf. Marx, Quinney, Chambliss!) 16

17 SUM: MORRIS & HAWKINS: 2 AREAS OF DISAGREEMENT WITH THEIR VIEWS 1. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS  PREFERENCE FOR NATURAL LAW APPROACH 2. DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS" 17

18 LON FULLER: HOW TO MAKE BAD LAW The Experience of “King Rex” Tries to Make Good Law 8 Successive Mistakes Not Unlike Mistakes Made Today in U.S.! 18

19 FULLER: BAD LAW (1,2) 1. AD HOC LAW - Law Based On Decisions: Day To Day, Case By Case. - No Guiding Principles On Which Law Is Based. 2. FAILURE TO PUBLICIZE - King Rex Then Established A Set Of Principles - Didn't Tell Anybody What They Were. - How Can An Unknown Law Guide Behavior? 19

20 FULLER: BAD LAW (3,4) 3. RETROACTIVITY - King Rex Getting Hang Of This … - Tells People What Law Is … AFTER Deviance - Then Explains How They Broke The Law. 4. NON-INTELLIGIBLE (OBSCURE) - Finally Sets Up Code Of Laws … - And Publicizes It … - But Nobody Can Understand It! 20

21 FULLER: BAD LAW (5,6) 5. CONTRADICTORY - People Finally Find Out What Law Means - Discover Many Rules Contradicted Each Other. 6. IMPOSSIBLE TO FULFILL - Sometimes Laws Were Impossible to Follow EX: 1 Mile Stretch of Highway, St. Louis County, MO - Speed Limit Changed 5 Times – - From 25 To 40 To 30 To 65 – - No One Could Drive Without Breaking Law. 21

22 FULLER: BAD LAW (7,8) 7. EXTREMELY CHANGEABLE - King Rex Changed Law a Lot - People Couldn't Keep Up With New Codes. 8. INCONGRUITY OF LAW AND ADMINISTRATION - Didn't Always Use His Laws On Regular Basis … - Sometimes He Enforced Them - Sometimes He Didn‘t … EX: Irritating Problems in Many Communities: - Law Used When Police Want To Use It - Ignored When Not Useful - EX: Use of Anti-Sodomy Laws Only Against Gay Men - Not Against Heterosexual Married Couples 22

23 SUMMARY OF LON FULLER Espouses “Morality of Duty” as Basis for Law Disagrees with “Morality of Aspiration” Believes States Should Make Law Which Is: – Based On Guiding Principles … – Will Publicized … Intelligible … – Well Publicized Prior To Enforcement … – Absent Of Contradictions … – Reasonable To Fulfill … Doesn’t Change Much … – Is Enforced On A Regular Basis 23

24 ROBERT COOLEY ANGEL (c. 1940) ON SOCIOLOGY OF LAW Sees LAW as One of a Network of Interrelating Social Structures in a Society Sociology Can Contribute to Legal Education … By Understanding Milieu in which Law Operates Law & These Units Are Interdependent There Are Other Means of Social Control (School, Family, Religion, Community Opinion) Lawyers, Police, Courts Should Recognize These – Q: Should Everything Be Enforced by Law? (Sex?) 24

25 R.C. ANGELL (ctd) Socio- Legal Research is Useful – & Difficult Rules Are Difficult to Define … Courts Vary Much in Enforcement Law & Administration Often Vary (cf. Fuller?) Claims There is Little Variation in Acceptance of Laws – Sociologist Can’t Study “Constants” NOTE: Is This True? Or Did He Simply Miss the Variation? 25

26 RESEARCH IN SOCIOLOGY OF LAW (Angell) Social Causes of Legal Rules Compare Law with Custom Analyze Rules v. Administration Social Effects of Legal Rules: – On the People – on the Administrators How Knowledge of Law Is Diffused How Much People Know about Law Where They Get Their Knowledge Differential Use: Law v. Informal Social Control 26

27 LAURA NADER (Anthopologist) Law Belongs in a Social Context Law Is Only One Social Control Mechanism Law Does 2 Things: – Settles Disputes (Resolve Social Messes) – Maintains Order “Dispute Settlement” Easier  Maintain Order Laws & Courts Perform Many Other Functions – “Scare” Spouse; Embarrass; Increase City Treasury Important Parts of Anthro (Sociology) of Law Her Research: Letters to Ralph Nader 27

28 CONCLUSION: WHAT SOCIOLOGY OF LAW DOES Analyzes Law & Legal System … From Perspective of Society … Sees Law As a Component of Society … Which Performs Important Social Functions … Is Established & Influenced by Founding Society In Turn, Has a Great Impact on the Society Can Have Unintended Impacts on Society We Will Be Examining These Issues This Term 28


Download ppt "MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist) 1."

Similar presentations


Ads by Google