Thursday, August 29, 2019
Philosophy Of Law Essay
Motive: A motive is a state of being relating to ones goals or specific desires. One may possess a conscious or unconscious motive. For example, one may act out of jealousy but not be aware of the jealousy. Even if motives are determined to be conscious, they are considered involuntary feelings or desires. Example:          A cigarette manufacturing company plans to increase profit through mediating the society’s aim of producing items that are non-nicotine. Through making â€Å"green cigarettes†, they tend to say that the said cigarettes have less nicotine, but would actually make the buyer feel to buy more because they are not consuming nicotine anyway. As a result, buyers would receive the same amount of nicotine for a higher amount of profit for the company, which is the main motive of the said marketing approach.                                                                             Intention: An individual’s intention is a means to an end. In other words, an intention is a way of achieving a specific goal or desire. Individuals are conscious of their intentions and may accomplish them by voluntary acts. Example:          A parent aims to protect his or her child through giving him the right chance to know the right principles in life that they ought to apply through maturity. Law is Concerned with Intentions:  The law is concerned with intention, but not with motive. Determinations about motives are hard to ascertain and very complex. Therefore, one cannot be held liable for a motive. They are involuntary behavior patterns. Requiring judges to determine penalties based upon motives would undercut predictability and uniformity of justice. Given their voluntary nature, the law punishes based upon intent. An individual can be held responsible for their intentions. Example:          A domestic helper accidentally killed her boss for the sake of self defense from a sexual assault from the said employer so she was pronounced not guilty by the court.                                      Skepticism Regarding Responsibility: Skepticism attacks the method of apportionment of responsibility for violations of law. Will the party be held personally responsible and if so, to what degree? Or will society have to bear some of the responsibility for an individual’s violative action? Skepticism is argued in many forms. Skepticism may be premised upon a theory of determinism, practicalism, technologicalism, and morality. Example:          A company aims to increase the quality of their products; however, the cost of the manufacturing has been passed in huge percentage to the consumers. As a result, the buyers has set an issue that has a great impact on the capability of the company to receive larger profit for the business. Deterministic Skepticism: Deterministic skepticism comes in a variety of degrees. In its most extreme, deterministic skepticism suggests that if one cannot help doing what they are doing, they should not be responsible for their actions. Other forms of deterministic skepticism are less drastic due to their belief that only a few persons are actually in a position where they cannot help what it is that they are doing. In the less extreme form, the inquiry focuses upon evidence regarding one’s ability to control one’s actions. Example:          A kleptomaniac is usually not held responsible for the things that he steals because of the fact that are considered psychologically disturbed. Practical Skepticism: Practical skeptics will not inquire into the question of responsibility because of the time required for such an inquiry has an inefficient impact upon the legal system. Such inquiry is believed to be an inefficient distribution of scarce judicial resources. Example:          A case against sexual assault has been dismissed by the court because of the lack of supporting evidences that proves that there is a real case to be solved. Technological Skepticism: Technological skepticism refuses to inquire into the question of responsibility, because its belief that the true concern of the legal system is that of control over the public. In sum, effective social control does not include an inquiry regarding responsibility. Example:          A case with regards a particular situation that involves an employee being disabled because of the machineries of the company has been dismissed due to the fact that the company already did its responsibility to the employee at the best of its cost. Moral Skepticism: Moral skepticism also forbids inquiry into responsibility because the theory holds that it is inconsistent with enlightened morality to insist on individual responsibility for harm. Example:          A man that has been separated from his wife for five years and has never been able to communicate with her now decides to marry another woman. He was permitted by his religious affiliation to do so, on the basis of the other partner being guilty of adultery and the process of divorce not being legal in the country. For this reason the court honors the marriage as well. Strict Liability: Strict liability is another theory in the consideration of allocation of responsibility. Strict liability requires assessment of liability upon grounds of physical acts without regard to actual responsibility. The theory does not require a finding of intent to commit crime and therefore does not require resources for determination of intent. Proponents argue allowance of strict liability to replace individual responsibility in its entirety. Strict liability agrees with the utilitarian perspective and represents a denial of individual liberties in favor of deterrence for public protection. Example:          An accidental occurrence that caused the injury of an employee from a work area has been considered a null-case since the evidences show that the situation has occurred because of a mere accident and nobody could be blamed for it.                                 FOUNDATIONS AND THEORIES OF LAW Eternal and Divine Law: Eternal law recognizes the role of a divine figure in the establishment of law. The numerous theories of eternal law suggest that law is created by the word of God, transmitted by prophet and sent to govern man. Recognition of eternal law is still found in Hebrew, Islamic and Babylonian law. Example:          The decision of the church to marry a man to five wives as an Islam is never touched by the law because it is a law based from the beliefs of the people. Disadvantages of Eternal Law: Eternal law requires faith in a divine being, of which there is no universally accepted figure. Eternal law also requires translation through a prophet who is not held liable for the rules since she interprets the word of God. Example: Natural Law: A system of rules and principles guiding human behavior based upon conduct common throughout all people. The laws and principles grow out of humanity’s rational thoughts and conform to natural mental, moral, and physical states. Cardinal premise states that humanity acts upon rational thoughts framed by our true nature to satisfy needs and impulses without interference from deception, dishonesty, or indulgence. Example:          A woman was offered a high amount of money in exchange of disowning her company’s established principles in handling the people force so as to sabotage the operation of the business at the advantage of its competitor in the market. Her conscience did not permit her top do so, knowing that no matter how much money is to be paid to her, she is sure to regret what she is going to do. Early Theories of Natural Law: Various early theories of natural law believed the concept was based upon virtue, nature, reason, and God. Example:          The society naturally accepts the things that has already been set by the natural systems of the earth and the ways by which they relate to human lives, such as occurrences and dilemmas happening due to the climate change. Historical Natural Law Based Upon Virtue: Natural law based upon virtue can be governed by theories of good conduct or justice and reason. Typically, law dictates virtuous duties of a person in all facets of their life. The duties generally demand fulfillment of particular social obligations and the rules may be considered divine in origin or from the ruler. Alternatively, the theory of virtue based upon justice and reason, demands decisions based upon an individual’s sense of justice and reason. If a decision is prompted by anything other than justice or reason, the person has failed to live by the law of nature. Example:          People are expected to act towards the situation facing them through reasonable idealism of truth and principles. If a man is faced with adversity of poverty, he is expected to work on making possible amends to support his life through working and not stealing. Historical Natural Law Based Upon Natural Justice: Natural law based upon a theory of natural justice was developed by Aristotle and holds that laws are of two types; universal and specific. Universal law is the law of nature and binding upon all people. Universal law does not change. In contrast, specific law is developed by the local community. It is developed by people and limited in its authority. Specific law is apt to change frequently. Example:          Once a person errs, the society despises sharing time with him or her until they know that he or she has already regretted the sin sincerely. Historical Natural Law Based Upon Reason:  Natural law based upon reason was developed by Cicero of Rome and establishes that law is premised upon reason in agreement with nature. Like Aristotle’s universal law, Cicero believes that natural law based upon reason is universal in its application and does not change. To alter this type of law would be considered a sin, and it cannot be repealed. It is a law which is eternal and unchanging and valid to all people at all times. This law was believed to be written by God. Example:          People pay in exchange of goods because it has been established through the olden times of the biblical and human history that something is given in exchange of something taken. Historical Natural Law Based Upon Divine Intervention: Natural law premised upon divinity was forwarded by St. Thomas Aquinas during the 13th century. Saint Thomas classified law into 4 levels. The first level is divine law, not all of which is known to man. The second level is divine law known to man, called eternal law. From eternal law comes natural law, and from natural law comes human law. Example:          People are usually guarded in their decisions through the divine understanding that they have with regards the principles of God. These decisions are considered by the court as the basis of accepting the existence of divine intervention. General Premise of Natural Law Based Upon Divine Intervention: Saint Thomas’ general premise of natural law is founded upon a notion of goodness. Saint Thomas’ theory holds that evil acts must be avoided and good acts accomplished. Generally, natural law applies to all people and prescribes that an individual act virtuously. Example:          People are expected to act upon situations based upon their understanding of the different principles of life that are considered as social norms, their decisions as per mentioned are naturally expected to be based on such moral beliefs. Criticisms of the Historical Theories of Natural Law: Some of the criticisms of early natural law theory include; 1) failure to distinguish between natural laws and normative laws, 2) man is removed from responsibility in moral decision making, 3) man’s contribution to own civility is ignored and, 4) distrust is unnecessarily placed in manmade structures. Example:          The judgment of humans with regards natural occurrences had been mistakenly related to the acts of abrupt human decisions. Historical Natural Law Lacks Distinction Between Natural and Normative Law: One of natural law’s many criticisms is premised upon a lack of distinction between natural and normative law. Natural law exists at certain levels in man and in nature whereas normative law, crafted by man, does not exist in the world of nature. Natural law, much like nature, exists upon its own terms with no sense of morality. Natural law is fashioned from a factual and a regular existence whereas normative law is comprised of human morality. Example:          Same-sex marriage had not been accepted by the law before, however, just lately, it has been widely accepted by both the church and the law because of the changing levels of social and moral law in the human community. Historical Natural Law did not Assign Responsibility for Moral Decisions: Natural law forwards the proposition that nature makes the selection between two possible and competing moral values. Realistically, the decision between competing values is made by man and not by nature. Therefore man must assume responsibility for selecting between two values and he should not ascribe the choice to nature. Example:          Love has been noted by almost everyone as a basis of all existing law. However, if it has been the basis of committed crime, love is then set aside to judge the situation as to how it has affected the lives of others involved in the matter. Historical Natural Law Ignores Man’s Contribution to Own Civility: Natural law does not consider man’s ethical and moral development, apart from that development which occurs through application of natural law. This premise ignores the importance of man’s contribution to his own development. Those opposing natural law believe man has more than a passive role in his ethical and moral development and should be given credit for such contributions. Example:          Although humans have already created possible ways to develop their own lives, natural law suggests that the developments are still based from the natural ways of the environment and not on the pure intellect of humans. Historical Natural Law Promotes Distrust in Man Made Structures: Natural law promotes distrust in man made structure. Natural law considers everything created by man to be erratic and inconsistent with prior structures. Opponents of natural law will argue that the existence of normative standards created by man govern his sense of judgement in a consistent fashion. Illustration of normative standards includes world religions. Example:          Natural systems are considered perfect and sustaining. It is this reasoning that would actually break down the causes behind the social distrust upon the manmade structures that are not likely following the systems of nature in sustenance and structural existence. Justification for Punishment Based Upon Retribution: Retribution is often cited as a justification for imposition of punishment for illegal action. Retribution is most commonly associated with a theory of fairness. One should be punished as a result of one’s blameworthiness in committing an illegal act. The beneficiaries of the punishment will be the society at large. Example:          An alleged terrorist upon investigation is judged as guilty and is kept in custody of the authority so as to protect the values of the greater number of human population. Justification for Punishment Based Upon Deterrence: Punishment has been justified upon the basis of deterrence. The theory holds that punishment deters illegal activity in two fashions. First, an individual may be deterred from committing a crime after considering punishment of a prior criminal. Second, the repeat offender may be deterred from committing crime as a result of prior punishment. The beneficiaries of the punishment will be the society at large. Example:          A prisoner not showing change is usually asked to rehabilitate so as to help him in not repeating his act and the other by being victimized by the said act. Justification for Punishment Based Upon Reformation: Punishment has been based upon a theory of reformation of the individual’s character, thereby allowing subsequent participation in society. The beneficiaries of punishment under a theory of reformation will be society at large and the individual criminal. Example:          Reforming criminal offenders especially the juvenile population is a regular practice that is applied by the government. This aims to help reaffirm the situation of the offender in a better status in the society, thus becoming a better person t the same time.                                                               DEFINITIONS Jurisprudence: Jurisprudence is comprised of two definitions relevant to the study of law. First, in the legal tradition of the United States and England, jurisprudence pertains to legal philosophy. Secondly, other European countries refer to jurisprudence as the collection of decisions of a particular court.          Opinionated Definition:          A person looses the real understanding of the jurisprudence of law when he becomes less able to understand the law due to anger and anxiety that increases the chances of moving violently against other people in the society. Likely, jurisprudence is returned to one when he is able to receive the rightful judgment he deserves from the authorities of law.          Example:             A jury decides to dismiss a case because of being highly moved for the reasons of the accused of why he did the crime. It turned out that he had no choice but to do it for the sake of protecting the one’s he loved. The court was less powerful in this case as the majority of the jury as well as the people in the court the public all attested to one plausible fact that the convict did it for a deep and logical reason.     Justice: The definition of justice depends upon which definition of jurisprudence is under consideration. By the American and English definition, justice means, â€Å"the constant and perpetual disposition of legal matters or disputes rendering every man his due[1].† But a broader definition of justice includes, â€Å"a moral or absolute rightness and upholding what is fair and just[2].†            Opinionated Definition:          Justice is applied as a normalizing factor among the differences of the people on the world. It sets the differences of the people in an equalizing their ideas and opinions with regard law and such things. Hence, justice is a regular matter that needs to be applied in the society continuously. A person then is supposed to be continuously considering justice towards himself and towards others as part of his moral responsibility to the society.          Example: Wal-Mart employees claim that they are being unfairly treated by their organization. As they continue to serve the company, they are also constantly apprehended by their union to continue fighting for the justice that they deserve as the force increasing the profit of the company every year. Natural State of Man: A state or condition whereby man reacts according to his natural impulses and not as a result of such stimulus as fraud, deceit, or misrepresentations.  The natural state of man is developed in the theory of Natural Law.             Opinionated Definition:          Conscience is a natural way by which humans understand the natural law of life, the impulses of humans with regards right and wrong is a strong implication of the reality of the existence of natural law. This is the section of the law that actually designs the basis of the right and wrong within the modern human law today.          Example:          A man was faced with great adversity of being homeless. He along with his family needed somewhere else to stay other than the streets so the man decided to search any possible area that he and his family could live for while. Out of need, the man saw a deserted house that nearly looked destroyed, still he managed to bring his family there and live there. After a few years, he was able to improve the house. Later on the owner of the house shows up and claims that the house has been stolen from him. The man attests that it was already deserted when he saw it and looked as if nobody already owned it. The man agrees to pay the price of the lot for possession, but the owner refuses to take the offer, instead he wants them to get out of the area. The man refuses the same way and a court hearing was set to solve the issue. Logic: The science of reasoning, or the operations of understanding which are subservient to the estimation of the evidence. The term includes both the process of proceeding from known truths to unknown, and all other intellectual operations[3]. Opinionated Definition:          Logic is used by everyone wanting to understand the regularities of life. Every individual utilizing it actually makes a meaningful understanding of the things happening to him and to the environment that he is living in. with logic’s existence, people are given the chance to reason out as to why they have done things in their past and how those experiences affect their present lives today.          Example:             Not everything has been explained to a defendant when he was talked to by his lawyer because the session hearing has already begun. However, through looking at the faces of the people in the court, logic tells him that there is something that will happen ones the new witness is set for questioning. Prerogative: An exclusive or peculiar right or privilege. A special power, privilege, immunity, or right vested in an official person, either generally, or in respect to the things of his office, or in an official body, as a court or legislature.[4] Opinionated definition:          Each person believes to have his own prerogative in life. Using it as a basis of his decisions actually makes his life more meaningful and successful as he uses the power he has to support the wants and the needs he is expected to support in his life today.             Example:          The NEDA Secretary of the Philippines, Romulo Neri refuses to speak on the depth of the case on the XTE-NBN deal as he is protected by the executive privilege law stating that he can conceal things as long as he believes he has already said what he needed to say at the senate. Property Law: Property law defines the borders of our legally rightful possessions, the nature and scope of those things we can take rightful title to. It is also used to describe the exclusive right of possessing, enjoying, and disposing of a thing[5]. It is the highest right a man can have in an object. Opinionated Definition:          Every person is given the rightful authority over his belongings. This is the primary basis of the property law which draws the line of the limitations and extent of one’s properties. Such law serves as a guideline to one’s understanding of the things that rightfully belong to him.          Example:           A number of people ought to say that the place where their scanty homes are standing is their own as community as it is already a public property, therefore they refuse to evacuate when a public project has been passed on to be built in their area. They point out that they have already worked hard for the development of the said area and they deserve to be paid for what they have done. On the other hand, the businessmen attest that they already own the area as they already bought it, meaning that they could already do anything that they would want onto it. Ratio Decidendi: The ground or reason for reaching a decision. The point in a case which determines the judgment[6]. Opinionated Definition:          Rational understanding of situations is likely much related to ones logical reasoning over a certain thought that explains a situation as it happens. Being rational about things makes one more capable of seeing the two sides of the coin or the positive and negative aspects of an occurrence. Being rational too helps a person to become more understanding of things as they come barging in to one’s lifetime using such occurrences as great opportunities for change and development.          Example:             Wal-Mart finally decided to face their issues with their employees. They tried to come up with the useful process of meeting the needs of their employees as they also meet the standards of the business. Likely though, after a year, the union decided to continue the cases against Wal-Mart as they believe that their values were not served well even after the agreement. Rhetoric: The art of effective expression and the persuasive use of language.[7] Opinionated Definition:          One’s capability of using language as a major source of expression of thoughts is a gift. However, a more persuasive pattern used by politicians and other certain personalities in the society today in an aim of influencing others is actually a more complex manner of using words for the sake of attracting people to take notice of the thoughts of the said individuals for consideration.          Example:             The politicians today use rhetorical speeches to be able to help the people understand their propagandas set for the betterment of the society as per proposed by the said individuals during campaign.     [1]     Black’s Law Dictionary, 6th Edition, 1990.     [2]     The American Heritage Dictionary, 2nd edition, 1983.     [3]     Black’s Law Dictionary, 6th Edition, 1990.     [4]     Black’s Law Dictionary, 6th Edition, 1990.     [5]     Black’s Law Dictionary, 6th Edition, 1990.     [6]     Black’s Law Dictionary, 6th Edition, 1990.     [7]     The American Heritage Dictionary, 2nd edition, 1983.
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