RYERSON UNIVERSITY Department of Philosophy Course No. PHL 612: Philosophy of Law Winter 2014 SECTION ONE (011) Instructor(s): Alex Wellington Office: Room 428, Jorgenson Hall* Phone: 979-5000 ext. 4057 (E-mail address)**: awelling@ryerson.ca OR alex.wellington@sympatico.ca Office Hours Posted: Wednesdays at 2:10 pm, By Appointment Wednesdays at 3:10 pm and at 4:10 pm, Drop In Time Thursdays at 3:10 pm, By Appointment *Other times may be available by appointment Website: Blackboard course website available through my.ryerson.ca This is an Upper Level Liberal Studies course Course Description: PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should …show more content…
Course materials will also engage with debates over the role of the Harm Principle, Moralism and Paternalism, especially in the context of Criminal Law. In order to bring these often very abstract issues to life, we will examine a selection of high profile and prominent decisions (mainly from Canadian courts, and frequently from the Supreme Court of Canada) which can be said to have changed the law, and in which the judges of the court have disagreed among themselves. Cases to be covered concern controversial issues such as Battered Woman Syndrome, Euthanasia/ Physician Assisted Suicide, Hate Speech, Marijuana Use, Obscenity/ Pornography, Prostitution, or topics in human rights (i.e., freedom of expression, national security and the right not to be tortured, or religious freedom). Analysis of cases will include exploration and examination of the philosophical aspects of crucial terms and concepts that appear in Canadian law, such as in the Criminal Code of Canada, or in the Canadian Charter of Rights and Freedoms. PLEASE NOTE: Philosophical theories of punishment, such as deterrence (based on the ethical theory of utilitarianism), retributivism (based on the ethical theory of deontology), denunciation, and restorative justice are covered comprehensively in a different course, PHL 449, Philosophy of Punishment. Throughout the course, there will be an iterative process for learning, one in which philosophical theories and
Retribution, Incapacitation, deterrence, and rehabilitation are four philosophies of punishment. Retribution is the punishment and is simply in proportion to the offenses seriousness. It is the "eye to eye" justice system. Incapacitation prevents further criminal activities and behaviors. It physically restraining the offender from future misconduct. Deterrence prevents through making examples of the offender being punished.
F.L. Morton examines the political impact of the Canadian Charter of Rights and Freedoms by comparing pre-Charter practices to post-Charter developments in five different areas: judicial behaviour, public policy, interest group behaviour, federalism, and executive behaviour. Morton presents the Charter through its continuity and change, beginning with the move away from Britain’s “unwritten constitution” and distinguishing the doctrine as constitutional supremacy that still depends on public opinion. He argues that due to the Charter’s constitutionality, Canadian courts are able to have a more active and influential role in interpreting and enforcing the listed rights which is a negative development in Canadian democracy.
One of the oldest justifications for punishment involves the principles of retribution. Retribution (1900-1905) refers to an idea that offenders should be punished for committing a crime, but would not punish someone who was forced to commit a cri-me, i.e. duress. It can be sometimes be viewed as a
There are four main philosophies of punishment, which differ as follows: Retribution – a very antiquated model representing the idea of “an eye for an eye”, in which offenders “get what they deserve” and their penalties fit the crime they have committed. Variations of this model do take into consideration the circumstances and characteristics of the offender in addition to the morality of the crime. This is a very unforgiving form of punishment, and not heavily exercised since it comes from a place of malice and does nothing to improve the lives of the victims, the criminal, or the community as a whole. Incarceration – creating physical restraints that prevent an individual from being able to perform certain actions. Examples of this include
Horrigan, B, _Adventures in Law & Justice: exploring the big legal questions in Everyday Life_, Lawbook Company, Sydney, 2003
Many people strongly support the capital punishment and there are also two ethical theories that the capital punishment. Those ethical theories utilitarianism and retributivism. Utilitarianism is a theory that search to identify the consequences of administering punishment, it explains that punishment should block someone from potential
Q1.A review of the case reveals that Indri is the sole director and shareholder in his own company. The Australian law makes a clear distinction between a business and its owner. A business is therefore considered a separate entity from its owner. A company is regarded as a separate legal entity to its shareholders, directors as well as employees, all of whom have a limited liability. This principle was at one point affirmed by the House of Lords in the Salomon v Salomon case. In this case, a company is considered a new legal entity that is separate from all of its shareholders. The court did this is a one person company as is the case of Indri. Ramsay and Noakes (2001) noted that Windeyer J stated in a High Court case of Peate v Federal Commissioner of Taxation noted that a company represents new legal entity, a person in the very eyes of the law. This separate entity principle has persisted in the Anglo-Australian Corporate law for several years. Therefore whenever a company acts it does so in its own rights. Therefore the shareholders are never liable to the company's debt that lies beyond their initial investment as capital (Ciro et al,2009).
Based on the case given, the pertinent area of law is whether the necessary conditions
Almost all general philosophies of punishment contribute different methods for determining any punishment’s fit with crime. Retributivism, a philosophy, broadly justifies the punishment that a person receive for breaking the law, through justice and the principle of desert. A common form of expressing the ideology of retribution is “an eye for an eye.” This theory consists of two main parts, the offender deserving punishment and the punishment should ft the crime. I will discuss the claim made by Retrbituivisist’s through focusing on whether Retributivist’s assumptions about moral responsibility are well founded.
Punishment is also justified by the possibility of enabling rehabilitation and resocialisation of the offender. Whether by a custodial or a non-custodial penalty, punishment will provide means of re-educating the offender, so that he will not commit further crimes. Also based on utilitarianism (check reference), this paradigm lived a period of great acceptance during most of the 20th century and declined in the 1970s, but has returned to some importance from the middle of the 1980s (Von Hirsch & Maier, principled, 33).
Theories of why we punish offenders are crucial to the understanding of criminal law; in fact it is not easy to define legal punishment, however one thing is clear within the different theories of punishment is that they all require justification.[1] There are many theories of punishment yet they are predominantly broken down into two main categories. The utilitarian theory seeks to punish offenders to discourage, or “deter,” future wrong doing. The retributive theory seeks to punish offenders because they deserve to be punished due to their behaviour upsetting the balance of society[2].
her idea that the rule of law exists “through the cognitive process of the human mind, the language of the rule of law has not only represented reality, but has also played a leading role in the creation and transformation of reality; accordingly, it has contributed to the modelling of the shared consciousness of society, including that of international society” (Beaulac, 2009, p.1). The notion of the rule of law and its history stems from many traditions and continents and is intertwined with the evolution of the history of law itself. Recent attempts to formalize its meaning have drawn on this rich history of diverse understandings. In a modern sense, the rule of law has developed into a government which is based upon non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.
It is through this that philosophers, government and prison officials have arrived at the five traditional goals of punishment which replicates elements of criminal punishment. They are retribution, rehabilitation, deterrence, restoration and incapacitation. Retribution, rehabilitation and deterrence are however the three most frequently used in today’s modern society, as they are the main justifications for punishment.
This paper deals with the basic causes of numerous - often extremely negatively intoned - critical estimations said on the account of Kelson's pure theory of law and exposes essential properties of certain phases of its development; point to the contribution of Merkl and Verdross to the making of pure theory of law and to the main determinants of Kelsen's attempts to formalize jurisprudence (the science of law) for the purpose of creating conditions for exact and objective study of positive law; analyzes the meaning and scope of Kelsen 's normativisms and provides his views of further making of the pure theory of law.
This paper is my reflection on the course material and reading for the class Feminism, Justice and the Law: FEM3104 at the University of Ottawa. In this reflection, I will focus and reflect on Constance Backhouse’s work, “Sexual Assault and Disability: Saskatchewan, 1942” illustrated in Carnal Crimes. The purpose of this reflection is to look back on the Canadian Criminal Justice System, in 1942, and see the progress and the development of our current system, 2017. Specifically, the change in interpretation and the victim blaming of sexually assaulted female victims that is evident in the courthouse even today. Backhouse in the article, “Sexual Assault and Disability: Saskatchewan, 1942,” narrates a case study of Beatrice Tisdale, a victim of sexual assault and a Deaf woman, as we follow her journey through the courthouse where she faces her assailant, the discriminatory and unfair trial, inadequate representation, and victim blaming. In the article, Backhouse focuses on the disability aspect of the case as Beatrice was Deaf which prolonged the trial. However, in this reflection, I will mainly focus on representation and interpretation that we receive today in the courthouse in comparison to when Beatrice took the stand. Another theme that I will bring up in this paper is judicial bias and judicial discretion and its close link to discrimination and prejudice.