I'm with you. But for me, the concern is not so much men vs. women and their respective rights, but the nature of punishment and who really ought to become a parent. The crucial problem with this case is that the murderer in question is currently incarcerated. There are certain rights which prisoners maintain, despite their crimes. The right to medical care. The right to worship. The right to have access to legal counsel. The right to live in a place that is safe while incarcerated. Putting someone in a dank hole to rot isn't justice, no matter the crime committed. One of the many social purposes of incarceration is punishment.

Punishment ought to hurt, but not too much (see note on dark hole above). No doubt it is painful for prisoners not to be able to do things that free people otherwise enjoy. But this strikes us as the fair price paid for committing crimes. I think the human right to have a family is on shaky grounds, much more shaky than the right for prisoners to have health, spiritual, and legal care. One reason for this is our tradition of human rights long predates the required biotechnology. Locke and Hobbes just weren't worried about smuggling sperm out of jail. A better reason why we shouldn't think of prisoners as having a human right to have a family while incarcerated is the potential life at stake: the future child. Society should come to the point of admitting that ethically, not everyone ought to become a parent. Who would I ban from parenting? It would be a great list to debate. But people currently incarcerated sounds like a good place to start. It would be taking things too far to say that convicted murderers should never become parents. If someone earns parole, turns his life around, and becomes a model citizen then I think - as far as the law is concerned - a convicted murderer might have the same chance that anyone else has to parent. Of course, would I say the same thing if the person in question was a convicted child molester-murder? Probably not, but my concern again would be ethics and not the reach of the law.

Yes. Clear cases are ones where the agent has strong reasons to believe that (1) the law is unjust, (2) compliance would cause substantial harm, and (3) non-compliance would neither (3a) lose much greater benefits, nor (3b) cause harm of comparable magnitude or (3c) unreasonable cost upon the agent. The Nazi period offers examples. Justice required German citizens in typical circumstances not to obey a law that mandated that they report Jews to the authorities for internment in concentration camps. This is so because German citizens knew, or could and should have known, that (1) the internment of Jews (and others) was unjust, (2) reporting a non-interned Jew to the authorities was very likely to harm this person greatly, (3a) the internment of the person reported would not bring any substantial benefit, (3b) the non-internment of the person would cause no harm comparable to the harm of internment, and (3c) not reporting a Jew was typically without risk to the agent (at least when one could plausibly plead ignorance).

As you say, Justine would be "like" a judge, but I don't think that actually makes her a the sort of judge who presides over a court of law. She might be making a moral judgment or even a political judgment. Clearly, ideas like what one "should" and should not do are operant here, and clearly it seems to be relevant to appeal to reasons, such as the agreement Pete and Pat made. But those are also the sort of things to which friends or students or romantic partners appeal in disputes. You don't have, however, a formalized legal code. Procedures for adjudication and appeal. Etc. So, while I'd say you have some of the elements of the rule of law or legal institutions, what you describe isn't quite sufficient to warrant describing their situation as "legal."

Of course, if you vote, you do get at least an indirect say in who's on the court. And after all, your say in a good many matters is only indirect.

In any case, if the question is what the Constitution means, there's something unappetizing about having the check be one that's too directly tied to the political realm. Constitutions are supposed to set some things beyond the reach of the ordinary democratic process, not least so as to evade what some call the "tyranny of the majority."

But in any case, it's not as though there are no counterweights. Some have held that Congress has the authority to declare that some matters are simply outside the purview of the Court, though I gather that this is controversial. But if the Court makes a constitution ruling that enough people object to, the Constitution can be amended, and has been many times.

More generally, what strikes me (as someone born elsewhere) is that far from being "primitive," the American system of checks and balances - including checks and balances on the Court itself - is actually both supple and subtle.

The question "What is the basis of morality?" is obviously an extremely difficult one, and it can sometimes seem as if there are as many answers to that question as there are philosophers who have thought about it. Or maybe more. But I take it that the questioner's central worry is whether there is any real possibility that law might not "derive its power...from some kind of (religious?) moral basis". And that is quite a different matter.

There are, I think, two important things to say about this. First, it's not at all clear that religion is capable of providing the kind of basis for morality that is sought. This is often regarded as one of the central points of Plato's great dialogue Euthyphro. There, Socrates poses the question, whether what is good is good because the Gods will it, or whether the Gods will what is good because it is good. And his point is that neither answer is very happy. If what is "good" is good only because the Gods will it, then even torturing babies for fun would be good if the Gods had happened to will it, and what they will, on this view, is not constrained by any prior moral facts. So what is good ends up being kind of arbitrary, and the view of radical Islamists, say, that blowing up the World Trade Center was good becomes perfectly comprehensible. It's just a view about what the Gods will. But if the Gods will what is good because it is good, and presumably because they recognize its goodness, then what is good is independent of what the Gods will, and religion provides no basis for morality. You might find out what is good by finding out what the Gods will, but there might just as well be other ways, too, since what is good comes first, and what the Gods will comes second.

Now, as the questioner rightly notes, it needn't really be religion that provides a basis for morality. And what is at issue here needn't even be what the basis for morality is, in some fundamental sense. The worry might be, more fundamentally, that people's moral views are thoroughly tied up with their relatively individual points of view---their religious beliefs, in some very broad sense---and it is hard to see how law can get by wholly independently of morality. This question, I take it, could also be put this way: How can questions about political justice be independent of questions about morality? And if we think the latter is tied up with religion and the like, doesn't political justice too become tied up with religion and the like? Well, I can't answer that question. What I can say is that it is, in many ways, the question that has animated "liberal" political theory since John Locke---and here "liberal" just means: fundamentally concerned with individual freedom (which is what Liberals too are fundamentally concerned with, whatever you may hear from O'Reilly and the like). It is very explicitly the central concern of John Rawls's second great book, Political Liberalism. So if you really want to come to grips with that question, you might start with Locke's Two Treatises on Civil Government and Letter on Toleration, continue with Rousseau's Social Contract, and then have a look at Rawls's Theory of Justice and Political Liberalism.

You raise a very interesting issue. but surely Kerry is right on this. He was arguing that although he himself had moral views that disapprove of abortion, if most of the electorate do not share those views,and they don't in the United States, then those views should not be made part of law. In a democracy law derives its power from the will of the majority, and the majority may agree on something that others regard as immoral. The law has authority because it is enacted to satisfy the majority. The next issue that stems from this is whether someone who feels the law is immoral should obey it, since we are not morally obliged to obey every law however terrible it might be, despite what Socrates suggests as he is awaiting his execution. But that is of course another issue entirely.

This question merits a much longer answer than I am capable of giving. But, with apologies for the compression, I'd say that the distinction between "activist" and "non-activist" judging is a popular-political distinction, not really one with much philosophical basis. Both the legislature and the judiciary produce new law and nullify old law, and they have always done so. They create and nullify law, however, in different ways--the legislature by enacting new legal codes, the courts by issuing rulings. Nor, however, is the line between the law and morality a clean one to draw. And, so, while I think it proper (indeed unavoidable) for the judiciary to enact new law, I also think it proper for judges to appeal to custom and common morality in rulings (for example in matters of indecency). Appeals to custom and common morality, however, must be balanced and in some cases simply limited by stipulated rights of non-interference and claim rights. They must also be balanced by countervailing lines of reasoning which may properly persuade courts that custom should be over-ruled. A clear set of principles to weight or establish an unequivocal hierarchy for (a) constitutional rights, (b) custom and common morality, and (c ) lines of independent reasoning cannot, I think, be given. The dynamic process of legal reasoning by means of precedent, guiding principles, clouds of norms, empirical studies, etc., is meant to work out this balance. As a general rule of thumb, however, constitutional rights trump the rest.

At least in the USA, the premise of the criminal justice system is that the burden is on the state to establish guilt "beyond a reasonable doubt." And there are various reasons why we might want to stick to that standard. It's not a good thing when a guilty person goes free, but it's also not a good thing when the state has low standards for establishing guilt. And so the usual idea is that everyone is entitled to a vigorous defense. Even if the lawyer believes in his/her heart of hearts that the client is guilty, the question for the judge and jury is whether the state's arguments and evidence make the case.

I think it depends on the significance of the action. Some actions we regard as immoral but not terribly important. The person sitting next to me in the library on the computer is annoying me giggling at Facebook with her companion, and I suppose this is immoral, since she has a duty not to disturb others in a public space in this way, but hardly something that should be illegal, although the idea of her being hauled away by the police is not an unpleasant one to me.

For liberals it is the notion of harm that is significant. If you think that abortion causes harm then it would be difficult to argue that the law should not be involved. Of course, marital infidelity also causes harm and there are countries where it is harshly punishable. Another highly relevant issue is whether one thinks that punishing behaviour will be effective in controlling it. So one may think an action is immoral and should be punished by the state, but it is not likely to be effective to try to do so. Which means there is no point in making it illegal.

There's the old saying that ignorance of the law is no excuse, because it's an excuse that anyone could offer and we wouldnm't know how to refute them. Legally, things are a bit more complicated. I gather that the Due Process clause of the US Constitution carves out some exceptions. If there's nothing "obviously" illegal about a certain kind of conduct, and the State doesn't provide proper notice to citizens that it's against the law, then the law won't pass constitutional muster. A fanciful example: suppose that buried in the bowels of some omnibus bill was a provision making it illegal to drive a red-and-blue car, but the State made no effort to let people know. Fining someone for this new "offence" would probably not stand up to challenge.

So in US law, at least, there's some requirement that citizens have a reasonable chance of knowing what's illegal. But even supposing all the laws were properly promulgated, it's not clear that we have an actual duty to know and understand them all.

Suppose I want to set up a complicated business. I don't know all the relevant laws, and I certainly don't understand them all. But I do know that this is tricky territory. I can be expected to know that there might be various licensing requirements, certain tax provision that I'd be subject to and so on. If I go ahead without consulting a lawyer and break these laws left and right, I won't be able to plead ignorance. But what the law is really expecting of me is not that I become an expert on all this. It expects me to take reasonable means to make sure I'm in compliance with the law. And there's an obvious way to do that short of gaining the knowledge myself: talk to an attorney. I can take reasonable steps to ensure that my business is legal even though I personally have only a faint understanding of what the law entails. And in typical cases, at least, that's what keeps the dilemma at bay.