Archives For PHIL 416 Philosophy of Law

(1) In your opinion do people have either a moral right or a constitutional right to engage in offensive public conduct which does not directly harm others?

In my opinion, people necessarily have a moral, but do not necessarily have a constitutional right to engage in offensive public conduct which does not directly harm others. I say they have a moral right, because I am liberal in the traditional sense of the word. I agree with John Stuart Mill, though for different reasons, that no one has the right to coerce anyone out of his or her rights unless failing to do so would infringe upon their own or others’ rights. I say people do not necessarily have a constitutional right, because the constitution is open to interpretation. Some would interpret it such that the kind of natural law that would support the right of an individual to engage in offensive public conduct which does not directly harm others, where as others would not.


(2) What is the best justification for legally prohibiting offensive public conduct?

The best justification for legally prohibiting offensive public conduct is that it directly harms others. Any justification based on the idea that it harms others indirectly is a lesser argument as it is based on a subjective claim.

Are the justices in the plurality successful in distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled? Why or why not? How do they draw the distinction?

In distinguishing the cases in which precedent should be followed from the cases in which precedent should be overruled, the justices in the plurality argue that precedent should be followed unless the rule has proved to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

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Griswold, an Executive Director of the Planned Parenthood of Connecticut and a medical doctor were convicted under a state statute criminalizing of married couples seeking to take contraceptives.


Is there a right to privacy in marriage implicit in the Constitution, despite the lack of explicit language guaranteeing such a right?

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Christopher Hurtado —  February 9, 2010

Original understanding refers to the philosophy of adjudication that considers the Constitution and the notions of its adopters are binding. The intent of this philosophy is the consistent interpretation of the Constitution over time. Originalism can be divided into four forms: “strict originalism” (or literalism), “strict intentionalism,” “moderate originalism” and “nonoriginalism.” The intent of the strict textualists is to interpret the text of the constitution very narrowly and precisely. The aim of intentionalism is to interpret the text according to the intent of the framers and adopters of the Constitution. The more common “moderate originalism” holds the text of the Constitution as authoritative, but open to interpretation according to the general purpose of the adopters. Nonoriginalist interpretation views the original history of the Constitution as grounds for inference of the appropriate interpretation, while at the same time leaving it open to revision or valid objection, and even forfeiture or annulment, according to changing experiences and perceptions.

Textualism assumes that (a) only a written text can impose constitutional obligations, or (b) that the adopters of the Constitution intended it to be interpreted according to strict textualism, or (c) that the text is the surest way to ensure the correct interpretation of the intent of the adopters. Intentionalists, on the other hand, view the Constitution as a useful guide to determining the intent of its adopters, but do not accord it favored status over other sources.

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Same-sex Marriage

Christopher Hurtado —  February 4, 2010

Those who argue against the proposition that same-sex marriage should be legal believe homosexuality a matter of choice and an immoral one at that. They also argue that homosexuals are not a disadvantaged group when compared to blacks. Thus, they argue, homosexuals do not need or deserve special protection from the government since they can protect themselves by hiding their sexual orientation. Those who argue in favor of same-sex marriage counter that demanding that homosexuals hide their sexual orientation while heterosexuals is discriminatory.


Those who argue in favor of the proposition that same-sex marriage should be legal believe that homosexuality should be protected against discrimination just as religion is, since, they argue, homosexuality, like religion, is a choice. They argue that just as people are not expected to hide their religion, but rather are protected in their choice, homosexuals should not be expected to hide their sexual orientation, but rather should be protected in their choice also. Those who argue against the proposition that same-sex marriage should be legal counter that many religious groups are not disadvantaged. In fact, like many homosexuals, they are advantaged when compared to blacks. Furthermore, religion is explicitly protected by the constitution,whereas homosexuality is not. Furthermore, they argue, some homosexual acts violated laws that have been found to be constitutional.

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MacKinnon points out that traditional equality is based on an Aristotelian notion of equality – the treatment of likes alike and unlikes unalike. She then argues that the Aristotelian notion of equality fails to recognize that the subordination of groups and the existing hierarchy in a society results in the perception of differences as natural. In MacKinnon’s view, the opposite of equality is a hierarchical social construct, not difference. Therefore, she argues for the dismantlement of group hierarchy and the promotion of equality of status for historically subordinated groups. She proposes equality jurisprudence that defines sex equality under the law as opposed to traditional notions of equality, which she views as abstract.

I agree in principle with MacKinnon’s substantive approach to the jurisprudence of sex equality under the law. However, I fundamentally disagree with her notion that the only way to promote equality of status for historically subordinated groups is to dismantle group hierarchy. If the existing hierarchy in society does, in fact, result in the perception of differences as natural, then MacKinnon and others who may agree with her ought to be able to demonstrate it within the existing group hierarchy. If they cannot demonstrate it, then they cannot reasonably expect to succeed in overturning common law. As a negative cannot be proven, it is up to MacKinnon and her followers to prove the claim they make against the current situation.


This case consolidates several different cases from Delaware, Kansas, South Carolina, and Virginia. Several black children sought, through legal representation, admission to public schools that allowed or required racial segregation. The plaintiffs alleged that racial segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

A three-judge federal district court denied the plaintiffs relief under the “separate but equal” doctrine in all but one case, citing Plessy v. Ferguson. The plaintiffs appealed to the Supreme Court, contending that segregated schools were not equal and could not be made equal and that the plaintiffs were therefore deprived of equal protection of the laws.

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Is there a moral obligation to obey the law?

Is it immoral to ever disobey any particular law no matter what the law or reasons? It seems it depends on the law, the situation and one’s reasons. When considering whether we have an obligation to obey the law, some would answer that it depends on what is meant by “law.” By law do we mean moral law or man-made law? Martin Luther King, Jr., a premier example of civil disobedience in our day, wrote in a letter to his fellow clergyman from jail in Birmingham regarding unjust man-made law that “injustice anywhere is a threat to justice everywhere.” According to Augustine, an unjust man- made law is really no law at all. While there seems to be a legal and moral responsibility to obey just laws in this view, there also seems to be a moral responsibility to disobey unjust laws. Just law can be understood as man-made code that is consistent with moral law, whereas unjust law can be understood as human law not rooted in eternal and natural law.

Others, like Mill would answer by appealing to the principle of utility. In his view, the law does not add anything to the morality of the situation. There is no moral obligation to obey the law. It is the consequences that matter. The question then becomes, are the consequences of my disobedience good overall, or are they harmful? Kant would ask, what if everyone did it? His categorical imperative claims that if one can will one’s maxim to be universal law without contradiction, then one’s maxim is moral and one must act on it. Otherwise, it is not moral and one must refrain from acting on it.

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Christopher Hurtado —  January 19, 2010

Dworkin’s main objection to Hart’s positivism is that the law ought to “take rights seriously.” If Hart’s claim that the adjudication of a hard case rests upon a judge’s personal opinion, intuition or his exercise of strong discretion, then rights are seriously compromised. In Dworkin’s view, rights are more important than other considerations such community welfare. Rights must not be subordinated to the interest of the community. They must be recognized as a part of the law. Dworkin argues that history provides more support for individual rights and liberty than legal positivism does.


In Lost Empire, Dworkin attacks conventionalism and pragmatism. According to conventionalism, law is a function of social convention-cum-legal convention. In other words, law simply consists in following convention. In this view, judges may exercise strong discretion in adjudicating. Continue Reading…


Christopher Hurtado —  January 12, 2010

Hart distinguishes between social habits and social rules. While following social habits is habitual, breaking them does not bring about harsh criticism or censure. Breaking social rules on the other hand does. Social rules seem to bind us and laws seem to be social rules. There are two perspectives to this: the external aspect and the internal aspect. The external aspect is the independently observable fact that people do tend to regularly follow the rules. The internal aspect is one’s sense of obligation to follow the rule. It is from this aspect which the law acquires its normative quality. This aspect is also know as the “critical reflective attitude.” Hart calls the populace’s obedience of a rule “efficacy.” For a law to be efficacious, the majority of the populace must follow it. While the average citizen of a modern state with a developed legal system may feel compelled by the internal aspect, it is more important for the officials of the society to feel compelled by it since they must follow constitutional provisions they could ignore with impunity.


Laws are more than just rules of conduct. There are two types of laws: primary rules and secondary rules. Primary rules are rules of conduct. Secondary rules are rules that apply to officials and govern the execution of primary rules. Secondary rules address three problems: The first is the problem of the uncertainty regarding what the law is. A secondary rule Hart calls “the rule of recognition” states the criteria for the validity of laws. The second is the problem of the rigidity of rules. This problem necessitates “rules of change” which govern changes in the law. The third is the problem of how to resolve legal disputes. This problem gives rise to “rules of adjudication.”

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