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January 4, 20101 response
You make two good points. On the first, re death penalty, I would agree that there are cases where it's crystal clear that the accused is guilty. But this is really beside the point. The question is whether we can design a mechanism that correctly identifies these cases. In the absence of such a mechanism, we must be especially reluctant to use the death penalty.
Your other point is that perhaps we should incorporate into criminal verdicts an assessment (by the judge or jury) of the degree of certainty. But again, there is the question how accurate this assessment would be. And there is the further point that it would look quite bad to impose a severe punishment on someone with the comment that we've just barely reached the minimally required level of certainty. Better then perhaps to handle this issue unofficially: just as jurors sometimes acquit someone who very clearly did what the law proscribes when they feel the person did nothing wrong (example: the killing of a suffering and terminally ill spouse), a judge may sometimes impose a lesser penalty because she is less than fully convinced that the person really committed the crime.
And a possibly interesting footnote on this second point. In the case of acquittals, as well, one could incorporate an assessment (by the judge or the jury) of the degree of certainty. And this is actually done, I believe, in Scottish jurisprudence, which allows -- aside from "guilty" and "innocent" -- a third verdict of "not proven." The accused goes free, but has not been fully cleared of the charges brought against her or him.
August 27, 20091 response
July 9, 20092 responses
David Brink and Oliver Leaman
May 27, 20091 response
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.
May 30, 20091 response
May 24, 20091 response
Peter S. Fosl
March 28, 20091 response
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.
February 23, 20092 responses
Oliver Leaman and Richard Heck
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.
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.
November 26, 20081 response
Peter S. Fosl
September 22, 20081 response
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