Utilitarianism, Deontological Model Theory

Extract 1 : INTRODUCTION TO LAW AND MORALITY
Extract 2 : CLASSICAL UTILITARIANISM AND KANTIAN DEONTOLOGY
Extract 3 : CONCLUSION

If morality matters for law, in what way does it matter and does it make a difference which moral theory is adhered to? Illustrate your answer with reference to at least 2 moral theories (the theories are Utilitarianism and Deontological moral theory)

Table Of Contents

CONCLUSION
Effect Of Law On Morality
Effect Of Morality On Law
BIBLIOGRAPHY

CONCLUSION

Effect of law on morality.
Legal rules can affect our moral beliefs as well as the operation of the moral sanctions. For example, a law against discrimination may change beliefs about proper conduct and lead also to a greater willingness of individuals to express admonition when they witness discriminatory behaviour. The principal effect that taking the influence of law on morality into account would add to the appeal of law as an instrument of control. Not only does law have a direct effect on behaviour through use of legal sanctions, it has as a by-product on the beneficial altering of moral beliefs and of reinforcing moral sanctions .1

Effect of morality on law
The existence of moral beliefs should itself influence the design of the law, given that moral beliefs constitute tastes the satisfaction of which raises individuals' welfare. For example, legal sanctions should be determined in a way that reflects the retributivist moral principle that wrongdoers be punished in proportion to the gravity of their acts. Thus even if on conventional instrumental grounds, legal sanctions should be much higher than harm when the probability of sanctions is low (for instance, the sanction for littering should be higher than harm when the probability of being caught is low) in order properly to deter, recognition of the importance to individuals' welfare of the retributivist principle would lead to some lowering of the otherwise quite high sanctions. Not only may recognition of moral beliefs influence the best design of the law, as in the example above, it may also affect the optimal domain of the law, for it alters the social value of use of the law. (For instance, if the penalty for littering cannot be high due to the retributivist principle, it may not be worthwhile using the law to control littering.)2

Even if we seek a unifying explanation for our moral convictions, why seek an impartial justification? To answer that question, we must first ask what impartiality is. We can distinguish between impartiality in the application and scope of principles (they will be applied to everyone equally) and impartiality in their justification. Impartiality in the application of rules obviously takes the rules as givens. Impartial justification of rules does not start by taking these as givens. Impartial justification of rules argues from some impartial standpoint to some set of rules. The idea that moral justification must ultimately be impartial justification used to be taken as axiomatic. Over the last 15 years or so, the moral status of impartiality has been challenged. One challenge has been that impartiality will end up requiring more self-sacrifice than is reasonable to demand. Another has been that our concern for and special responsibility towards our family and our friends does not need impartial justification. We might agree that, if the concern for impartiality in justification has grossly implausible moral implications, then the emphasis on impartiality is misguided. But whether the concern for impartiality in justification does have grossly implausible moral implications remains to be seen .3

  1. S. Shavell (2001) [http://www.law.umich.edu/CentersAndPrograms/olin/papers/Fall%202001/shavell.PDF][^ Return]
  2. S. Shavell (2001) [http://www.law.umich.edu/CentersAndPrograms/olin/papers/Fall%202001/shavell.PDF][^ Return]
  3. B. W. Hooker quoted from 'some theses about the assessment of moral theories [www.rdg.ac.uk/AcaDepts/Id/Philos/How_To_Assess_Moral_Theories.htm-30k-] [^ Return]

BIBLIOGRAPHY

1 Abelson, R. and Friquegnon, M. (eds.) 'Ethics for Modern Life', St. Martin's Press, 5th ed. 1995

2 Brandon, Ed 'Law And Morality' November 3rd 2003:
[http://www.uwichill.edu.bb/bnccde/_e&ae/ph19b_lawandmorality.htm] 2003

3 Devlin, Lord P. 'The Enforcement Of Morals', Oxford, Oxford University Press 1959

4 Hart, H. L. A. 'Law, Liberty And Morality', Oxford, Oxford University Press 1962

5 Hooker, B. W. 'Some Theses About The Assessment Of Moral Theories':
[www.rdg.ac.uk/AcaDepts/Id/Philos/How_To_Assess_Moral_Theories.htm-30k-] 2003

6 Kant, I. 'Groundwork of the Metaphysic of Morals', trans. Paton, Harper & Row, 1964

7 Mackie, J. L. 'Humes Moral Theory', London: Routledge 1980

8 Rachels, J. 'The Elements of Moral Philosophy', McGraw Hill, 2nd ed. 1993

9 Shavell, S. 'Concluding morality and law':
[www.law.umich.edu/CentersAndPrograms/olin/papers/Fall%202001/shavell.PDF] 2001

Extract 1 : INTRODUCTION TO LAW AND MORALITY
Extract 2 : CLASSICAL UTILITARIANISM AND KANTIAN DEONTOLOGY
Extract 3 : CONCLUSION

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