Why Is Legal Paternalism Necessary

A substantial debate over the law’s relationship with morality exists within the legal system. This debate gained new perspective when Oliver Wendell Holmes published The Path of Law in 1897, which outlined his view on the relationship between the law and morality. This paper will first consider whether or not Holmes believed that a writing must be moral in order to constitute a law. Next, we will explore my general agreement with Holmes’ view on this matter. Then, the paper will consider an objection to my agreement with Holmes, and then reply to that objection. Finally, we will end by analyzing the discussion of the relationship between morality and law. In this paper, I will argue that Holmes does not believe that a writing must be

To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

Laws in general are thought up in order to maintain order in our society. Over time, it has

The frameworks of the Belmont report have several contrasts with the Anti-paternalism frameworks. Paternalism can be defined as behavior of a person, group of individuals or state that deny or limit

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 our analogy I may choose to move through a city where laws exist. If I break any of those laws, I may suffer consequences. However, the consequences affect me independently of my being aware of the violated laws that bring them about. In this analogy, I could be ignorant of natural laws; driving at excessive speed may take my car off of a cliff, and the horrible accident may take my ability to move away from me through severe injury or the loss of my life. My irresponsibility may not have been severe enough to have caused a mishap, but I may have been in violation of imposed rules or law, as in driving recklessly or speeding too fast. In this case governing authorities, themselves, necessary extensions of the imposition of law, may choose to imprison me after making a determination of my intentions and my cognizance of the law. Such imprisonment will deny me of the fourth principle, the unfettered power of choice. Through imposed law, I can be denied my ability to move even though my careless actions may not have been serious enough for me to have denied that ability to myself through the effects of a incapacitating

Moreover Devlin asserts that moral legislation is crucial to maintain a social bond. He maintains that society has a right to protect its own existence by barring behavior that threatens that existence. This is distinctly divergent from Mill's perceptions on paternalism.

     John Stuart Mill and Gerald Dworkin have distinctly opposing views on legal paternalism in that Mill is adamantly against any form of paternalism, whereas Dworkin believes that there do exist circumstances in which paternalism is justified. Both agree that paternalism is justified when the well being of another person is violated or put at risk. Mill takes on a utilitarian argument, explaining that allowing an individual to exercise his freedom of free choice is more beneficial to society than deciding for him what is in his best interests. Dworkin, on the other hand, feels that certain cases require the intervention of either society as a whole or its individual members. He breaks

If morality is so significant that one could justify breaking the law we must consider the importance of being moral in the first

Natural law theorists believe that all law must be morally justified if it can be legitimised as law at all. Legal positivism means the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have otherwise done so. (Hart, DATE)

Government has a legitimate concern to exercise its authority to protect society and the general public from behavior of individuals and government also has a limited right to exercise paternalistic authority to limit and regulate the types of risks to which individuals can expose themselves. For that reason, laws that criminalize drunk driving, for just one example, are completely justified. Otherwise, irresponsible personal behavior could put innocent people at great risk.

To a great extent, the theory of personhood rests on a breaking down and clarification of what it is to be an agent. Human rights, as understood by Griffin, are protections of our status as functional human agents, grounded in our interests in autonomy, liberty and the minimum material provision requisite to make the exercise of our agency real and possible. Griffin acknowledges that the human interests in autonomy and liberty are not the only important interests that exist, but it is the protection of these particular interests that generate a human right . In this sense, autonomy and liberty are the special, determinant grounding elements identified by Griffin as the interests required for normative agency.

Morals are norms of behaviour that the society acknowledges. Religion sets rules and customs for its followers. These religious rules influence the legislative system. If religion plays a role in government policies, it would also influence laws. For example, religious beliefs and morals influence abortion laws in many parts of the world. It is still looked upon as morally wrong on the basis of religious ideas to undergo an abortion procedure. Phillip Montague points that “legal and political debate and decision making should be governed by standard criteria for assessing reasons and reasoning, and when religious considerations fail to satisfy such criteria, they should not be allowed to influence matters of law and public policy” (Montague 17). He further states that these matters consist of abortion, capital punishment, and euthanasia along with numerous subjects of social justice such as welfare policies. Montague claims that in comparison with secular reasons, “religious reasons fail by a wide margin to deal adequately with the complexity of such issues” (Montague 17). For instance, a person who argues that homosexuality is morally wrong for the reason that it opposes the divine law would be referring to religious grounds to support his argument and not secular. Individuals should not be arguing for restrictive laws or policies if they do not have secular grounds to support them. They should only put across views that are

I agree mostly with what Ronald Dworkin is quoted as stating in this article. His opinion of the “moral conception of law’s normativity”(479) is what