Archives For PHIL 416 Philosophy of Law

Real Rape

Christopher Hurtado —  April 13, 2010

Susan Estrich argues in chapter six of “Real Rape” that “simple rape is real rape” (881). Simple rape is distinguished from aggravated rape in that aggravated rape is defined as committed through conscious coercion, whereas simple rape is defined as committed by negligence.

Estrich cites British rape case, Director of Public Prosecutions v Morgan, to demonstrate significant differences between American and British definitions of rape. The British look to the man’s mental state in committing rape, while America has almost completely dismissed the intent requirement. Morgan held that if a man believes that a woman has consented to sex, he cannot be convicted of rape, no matter how unreasonable his belief (875). Estrich argues that this is problematic on many levels. She argues that by dismissing the intent requirement, women, not men, will are on trial and the woman’s sexual history is called into question. She argues further that, the “issue to be determined is not whether the man is a rapist, but whether the woman was raped,” and that acquittal “signals that the prosecution has failed to prove the woman’s sexual violation—her innocence—beyond a reasonable doubt” (877). Finally, Estrich argues that without an intent requirement, the resistance requirement is generally used and that a woman’s resistance, or lack thereof, in a rape is no clear indication of whether she consents to sex since she may feel that resistance is futile.

Continue Reading…

Law and Morality

Christopher Hurtado —  April 6, 2010


What is the proper relationship between law and morality? This is a political question. In order to answer it, we must first answer the metaphysical, epistemological and ethical questions underlying it: What is law? What is morality? How do we know? Ethics is the central branch of philosophy and its raison d’être. It tells us what is right for us to do. But in order to know what is right for us to do, we must first know what kind of beings we are. The purpose of the science of ethics is to discover and define a code of values to guide our choices and actions—the choices and actions that determine the purpose and the course of our life.1 Ethics tells us how we should treat one another, giving rise to politics, the branch of philosophy that defines the principles of a proper social system.2 The key political issue of our time is freedom versus statism.3 This, I will argue, is the issue at stake in the question of the proper relationship between law and morality and freedom is the only rational choice.


If we are in what Rand called a “malevolent universe,”4 then by our very nature we are “helpless and doomed … success, happiness and achievement are impossible to [us] …emergencies, disasters, catastrophes are the norm of [our] life … and [our] primary goal is to combat them.”5 In this case, it hardly matters what we do. Regardless, the universe will conspire against us to defeat our purposes. If, on the other hand, we are in what Rand called a “benevolent universe,” 6 then “ideas matter . . . . That ideas matter means that knowledge matters, that truth matters, that one’s mind matters.”7 In this case, there are objective answers to the above questions and the answers are knowable.

Continue Reading…

If two people commit burglary together, and one intentionally kills the owner, should the other burglar be found guilty of felony murder if this other burglar did not know that the killer was armed? Why or why not?


If the law states that anyone who is an accomplice to someone who commits murder during the course of a burglary, then the burglar who was an accomplice in the burglary to the killer should be found guilty of felony murder, regardless of whether he knew the killer was armed. 7. Suppose that a truck driver runs over a cardboard box in the middle of the road, just because it is too much trouble to avoid it. Unfortunately, a child is playing in the box, and the child is killed. Should the truck driver be found guilty of murder or manslaughter? What if the truck was stolen or contained illegal cargo, so the truck driver was committing a felony at the time? Then should the driver have been found guilty of murder or manslaughter? Why or why not?

Continue Reading…

(1) Why was the death penalty upheld in McCleskey, but not in Furman? (just for your information, note what Furman did: p.779, question #1)

In McClesky, under Georgia law, the jury could consider the death penalty if it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. The jury found beyond a reasonable doubt that the murder was accompanied by two statutory aggravating circumstances: (1) McCleskey committed the murder during the course of an armed robbery and (2) McCleskey murdered a peace officer engaged in the performance of his duties. As McCleskey offered no mitigating evidence, the jury recommended the death penalty on the murder charge and the court sentenced McCleskey to death.


McCleskey’s claim that Georgia’s capital punishment statute violates the Fourteenth Amendment Equal Protection clause based on racial discrimination against his color, which he based on statistical evidence of the overall application of the death penalty in Georgia was rejected by the Court on the grounds that he could not prove discrimination in his case. The Court also held that discretion is essential to the criminal justice process. The Court also rejected McCleskey’s further claim that the State had acted with a discriminatory purpose on the grounds that there was no evidence to that effect either.

Continue Reading…

Van Den Haag

Christopher Hurtado —  March 23, 2010


Is the death penalty constitutional, useful, and morally justifiable?

I. The Constitutional Question

The Fifth Amendment implies a “due process of law” to deprive someone of life. The Eight Amendment prohibits “cruel and unusual punishment,” but does not supersede the Fifth Amendment, as both were simultaneously enacted. The Fourteenth Amendment reasserts and makes explicit the previously implied authority to “deprive of life…” by “due process of law.” Therefore, for the death penalty to now be unconstitutional, it must now be seen as “cruel and unusual.” However, there is no moral consensus to this effect.

Continue Reading…

Some politicians support a recent proposal popularly known as “three strikes and you’re out.” In one form, anyone convicted of three felonies (or three violent felonies or three felonies of the same kind) would receive a sentence of life in prison without chance of parole. Would act utilitarians support this proposal? Would rule utilitarians? Would you? Why or why not?

Act and rule utilitarians alike would likely see the “three strikes and you’re out” proposal as increasing overall utility and therefore support it. Anyone convicted of three felonies is likely to commit more. Therefore, there would seem to be greater overall utility in sentencing him to life in prison without a chance of parole, thereby eliminating the threat to society that he poses. Furthermore, both act and rule utilitarians would agree that the threat of life imprisonment without the chance of parole serves as a deterrent to those who have already committed two felonies. Sentencing anyone convicted of three felonies to life in prison without the chance of parole sends a clear message to anyone who has already committed two felonies that he had better rehabilitate. Act and rule utilitarians alike would also agree that whether the result of this threat is the rehabilitation of the felon after two felonies or life imprisonment after three, overall utility would increase, as the threat to society the felon poses is eliminated either way. However, this general assessment of the act and rule utilitarian approach to dealing with punishment overlooks the possibility of rehabilitation.

Continue Reading…


Two Native American’s working as counselors at a private drug rehabilitation facility used peyote (a hallucinogen) as part of their religious ceremonies as members of the Native American Church. They were fired from their jobs for this behavior and subsequently filed a claim for unemployment compensation. They were denied benefits by the government on work-related “misconduct” grounds. They lost in state court, but the Supreme Court vacated the Oregon Supreme Court’s judgement and returned the case to the Oregon courts to determine whether religious use of illegal drugs violated state law (485 U.S. 660 (1988)). The Oregon Supreme Court concluded that religious use of illegal drugs did violated the law, but that the law violated the free exercise clause. The case was then returned to the Supreme Court.


Can a state deny unemployment benefits to workers fired for using illegal drugs for religious purposes? Continue Reading…

(1) According to Mackinnon, what is the difference between obscenity and pornography?

According to MacKinnon, obscenity is a moral issue, whereas pornography is political issue. MacKinnon claims that obscenity is “ideational and abstract” and “probably does little harm,” whereas pornography is “concrete and substantive” and “integral to attitudes and behaviors of violence and discrimination” against women. According to MacKinnon, obscenity deals with the legality of the depiction or portrayal of sex, whereas pornography deals with the representation of women as sex objects as natural.

(2) Who has the most persuasive argument: Dworkin or Mackinnon? Explain.

Dworkin has the most persuasive argument. As loathsome as the majority may find pornography, and as virulent as its production and consumption may be, this does not justify the violation of the right of the minority to the freedom of speech and of the press guaranteed by the Constitution. While I include myself in the majority who find pornography loathsome, I am nevertheless bound to defend the freedom of the minority who do not. I contend, along with with Ayn Rand, that “in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle” (“Censorship” 173).

Continue Reading…

Bowers v. Hardwick upheld the constitutionality of Georgia’s sodomy law that criminalized oral and anal sex in private between consenting adults. Despite precedents for penumbral privacy rights argued to be implicit in the due process clause of the Fourteenth Amendment to the United States Constitution, the majority opinion in Bowers v. Hardwick held that the Fourteenth Amendment did not imply a right to homosexual sex acts in private between consenting adults. Justice Byron White framed the legal question in terms of “a fundamental right upon homosexuals to engage in sodomy” and rejected any claim to such a right arguing that there is no right to such conduct “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

Lawrence v. Texas struck down Texas’ sodomy law, overruling Bowers v. Hardwick, holding that its view of liberty was too narrow. The majority opinion in Lawrence v. Texas held that sex acts in private between consenting adults, whether homosexual or heterosexual, were a liberty protected by substantive due process under the Fourteenth Amendment. Justice Anthony Kennedy, who wrote the majority opinion, strove to cast doubt on the finding in Bowers v. Hardwick that homosexual sodomy is historically a widely condemned practice. Justice Sandra Day O’Connor also found that the Texas law violated equal protection guarantees. The Court concluded that the decision in Bowers v. Hardwick was incorrect, ought not to remain binding precedent and should be and now was overruled.

(1) What justification could be given for enacting (a) laws governing moral behavior and (b) laws which are for a person’s own good?

Justification could be given for enacting moral laws on two grounds: (1) on the grounds that they protect the rights of others which would otherwise be infringed upon, and (2) on the grounds that they protect the society which is based upon agreement on the the principles underlying such moral behavior. Justification could be given for enacting laws which are for a person’s own good on the two grounds also: (1) on the grounds that the person is unable to act rationally based on his or her level of maturity (as in the case of minors) or mental health (as in the case of senility or mental illness) and (2) on the grounds that the person would want to be proscribed in his or her actions because either (a) he or she lacks the willpower to carry out his or her own will or (b) her or is is not fully cognizant of the consequences of the conduct proscribed by law, and would otherwise agree with being coerced. In the former case, the person agrees to being coerced in advance. In the second, the person would presumably agree if her or she were reasonable.

(2) Do you agree? Why or why not?

I agree with enacting laws that proscribe immoral behavior that directly harms others. Otherwise, I disagree on the grounds that the individual is sovereign and his rights are inviolable inasmuch as they do not violate the rights of others. I base my argument on the precarious nature of life and man’s need to act rationally, according to his own conscience, in order to survive and thrive. He has a right to life, and by extension a right to property to secure the fruits of his labor for the sake of his own survival.