Controversies in the Philosophy of Law
LS490-01: Unit 5
November 16, 2010
The proper aims of law have been debated and tested through legislation and case law from the early start of America. Although it is clear that common good for society as a whole should be a prime consideration in creating and implementing law, the specifics of why laws are made are still being debated today. Three influential philosophers, John Stuart Mills, Gerald Dworkin and Devlin have brought great insight into the proper aims of law. John Mills presented the argument that “acts that directly diminish another’s well being… failure to perform identifiable obligations one may have to others… [and] failure to perform one’s share of what is required for a decent common life in society” (Murphy, 2007, pp. 83, 84). Gerald Dworkin proposed “legal restriction… to protect or promote the subject’s good” (Murphy, 2007, pp. 94-95). Devlin believed in the importance of morals in the “interest in the preservation of society” (Murphy, 2007, p.101). All of these philosophers brought perspectives that have aspects of validity and are still applied today. In controversial issues such as statutory rape among consenting teens, abortion, capital punishment, assisted suicide and mandatory car insurance, the debate over which aim is right and proper still rests on which philosophical aim of law is applied. As society advances and values change, so will the debates over which aim is best for each issue, though it is clear that a complete depiction of the proper aims of law involve a combination of all theories. This is an excellent opening paragraph! You stated the purpose of the paper and focused on the philosophers in Chapter 3 and the issues you have selected to address. Well done!
Statutory rape among consenting teens is one issue in fierce debate today. In the state of Wisconsin, two teenagers, ages sixteen may have dated for two years. Although young, they decide to have sexual relations with each other. Wisconsin Criminal Code; 948:09 dictates, in reference to sexual intercourse with a child sixteen or older, “whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of sixteen years is guilty of a Class A misdemeanor” (Wisconsin Government Statutes, 2010, p.30). by the letter of the law, two consenting teenagers would both be victims and perpetrators for the crime of statutory rape. The punishment could include time in jail, fines and/or registration as a sex offender as “crimes which mandate inclusion in the sex offender registry are… first or second-degree sexual assault of a child” (State of Wisconsin Legislative Reference Bureau, 2004, p.2). The aim behind statutory sex offender laws is that “[s]tatutory rape laws assume that all sexual activities involving individuals below a certain age are coercive. This is true even if both parties believe their participation is voluntary” (Glosser, Gardiner, Fisherman, 2004). From the perspective of Mill, the crime of rape is harm done to another. Laws forbidding rape would be justifiable. However, in statutory cases in which each party consents it may be a different case. Mills asserted that “…unless it can be shown that the actions… [generate] harm to others, there is no legitimate basis for legal restrictions” (Murphy, 2007, p.84). Laws used to prosecute either teenager in this example would be improper according to Mill. Solid analysis! Devlin however might argue that the use of law is fitting in this example. “Devlin’s view was that we have a strong interest in enforcing positive morality through law, and that while there might be countervailing reasons against doing so on many occasions, we cannot fence off a zone in which morals legislation is not allowed to intrude” (Murphy, 2007, p.101). In Devlin’s view, the morality behind preventing underage sexual relations may be reason enough to warrant such a...