1. Legal Reasoning Related to moral reasoning Based on some legal philosophy Situated in some context

2. Legal and Moral Reasoning Legal and moral reasoning both may involve prescriptive claims. Moral example: One should not unnecessarily restrict the freedom of another. Legal example: One must not act in a way that deprives others of their civil rights. Does one have priority over the other? Can a moral principle decide a legal issue? Can a principle of law be used to settle a moral issue?

3. A Philosophy of Law n A philosophy of law is, at the very least, a theory about the justification for making some act illegal.

4. Four Philosophies of Law n Legal moralism n Harm principle justification n Legal paternalism n Offense principle justification –Remember, each theory gives a basis for making an act illegal.

5. Legal Moralism This philosophy asserts that the law should make illegal whatever is immoral. Example: traditional Islamic law An American challenge: “...the new government, in Jefferson’s eyes, was to be a shell, an armor, a protective structure that would allow and perhaps, in subtle ways, even support the growth of moral power within the individual members of the society.” (Needleman, p. 166) American law does not totally embrace or reject legal moralism.

6. Legal Moralism Would any of these be more promising as a starting-point for a morality-based legal system? Moral relativism Utilitarianism Duty theory (with categorical imperative) Divine command theory Virtue ethics

7. Harm principle justification A philosophical issue: Should laws be as few and as narrowly focused as possible, with the standard being that laws simply do an adequate job of protecting citizens from harm?

8. Harm principle justification n An action should be illegal if and only if it does harm to others. n Definition issue: What is harm? (In practice, this definition would evolve.) American context: Environmental laws (Is this minimum protection from harm?) n Criminal vs. civil proceedings

9. Legal paternalism Do lawmakers know more about how you should live your life than you do? Should government get to decide what’s right or good for you?

10. Legal Paternalism n Laws for the citizen’s own good (or at least that’s what they tell you) n Example: seat belt laws More controversial example: Drug possession laws When does the punishment for violating one of these laws do more harm than the prohibited behavior? Is the law then still right?

11. Offense principle justification How offensive does a behavior have to be before it should become against the law?

12. Offense Principle n Do others have a right not to be offended? n In the American context, is freedom more important than someone else’s subjective preferences? n Is the law the place to address any or all disagreements about what is proper behavior?

13. Reasoning involving laws n Legal vs. moral arguments n Specialized terminology issues n Interpreting reported facts of a case n Precedents Role of philosophical or religious beliefs that conscience holds to be “above the law”