a child. Whereas hard paternalism, what Dworkin is arguing for, justifies laws for all individuals, including those that are competent. Mills disagrees with hard paternalism, with his only exception being slavery. Dworkin uses Mill’s exception to defend legal paternalism, which is justified because it preserves an individual’s autonomy. Individuals are prone to irrational decision making and, therefore, we must appeal to a person’s hypothetical consent, or the consent of an individual who is fully rational.
This action is done regardless of the consequences afterward because duty is more important. To determine what rules are valid, the Categorical Imperative has two important checks: the rules must be universally applicable, meaning anyone can do follow it and it will not change due to certain circumstances; and that the rules must never make other people use people purely for the purpose of achieving his or her goals. If a rule passes those checks, it is valid and must be follow. Analyze: While there is no real list of rules based on Kantianism, I will base Jean 's decision on morality. Evaluating the first point, Jean broke the second clause of the Categorical Imperative: using other as a purely as a mean to an end.
However, Feinberg articulated that ‘legal moralism’ and paternalism are insufficient grounds for criminalising conduct . He convincingly argued that under a liberal scheme for criminalisation, ‘the Harm and Offence Principles’ diminish the good reasons (critical moral justifications) for criminal prohibitions . The exposition of harm principle is provided by J.S Mill, stating the state can only exercise its power over any state members when its purpose is to prevent harm to others . The harm principle has negative and positive thrusts, negative thrust limits state’s power to punish, it gives political priority to individual freedom from coercion rather than collective goods such as morality or welfare, self-harm is insufficient to become a crime . While positive thrust justifies state’s coercion, it supports harm prevention .
The state, as the enforcing agency, is limited to dealing with evil, not controlling all men. “Second, and directly related to this first point, a negative concept of law insures liberty: except for the prohibited areas, all of man’s life is beyond the law, and the law is of necessity indifferent to it. If the commandment says, ‘Thou
The doctrine of binding precedent is restricted to common law legal systems, yet is integral to their operation. Being that body of law found in the decisions of the courts, common law depends for its application and development upon the ability of judges to locate and follow the decisions reached by courts in previous cases sharing the same material facts as those of the cases currently before them. The doctrine of binding precedent operates by reference to the hierarchy of the courts,' which generally means that courts are obliged to follow relevant decisions of those courts which sit above them in the court hierarchy. It is important to note that while taken for granted within common law systems, binding precedent is alien to civil law jurisdictions.
It seems no longer appropriate to create new rights and remedies simply because the justice of the case requires it. Any new rules must be shown to have evolved from accepted foundations. So, equity has not past the age of childbearing, but it is sure that “its progeny must be legitimate—by precedent out of principle”. This aspect is well showed by Lord Denning’s essay “The need of a new equity”. Lord Denning started his reflection on Equity’s role with the examination of the relation between law and society: when the rules are given the force of law, they must be obeyed because they are law and not because people accept and agree with the reasons on which they are founded.
But because humans desire power, there is always a reason to break the contract, despite the logic behind this law and the natural need to preserve our rights. Other natural laws must come into play in order to preserve this third law. Ryan states that, “Hobbesian man is obliged to keep his agreements unless it is intolerably dangerous to do so,” (Ryan, 1996). Hobbes writes that humans must make agreements and must follow them, not only because they see some advantage in them, but unless and until a threat comes, must they follow
The most important justification for not imposing liability for an omission is that it will restrict individual freedom. People should be at liberty to choose how they want to live. Punishing omissions is therefore a far greater infringement on personal liberty than punishing acts. There is no general duty to act because the law respects personal autonomy. Glanville Williams stated that omission liability should be exceptional and needs to be adequately justified in each instance and when it is imposed it should be in clear statutory
The fact that the person has breached a rule of law is thought to be crucial to justifying the outcome that the person should be sanctioned. Simmonds says that this ordinary understanding we have of the way law is invoked by judges to justify sanctions cannot be understood simply by reference to Hart’s idea of a master rule of recognition, which could be followed by officials for any reasons whatever. It would not be intelligible, Simmonds claims, for a judge to offer, as a justification for a sanction, the fact that a person has breached a rule, which is identified by a rule (the rule of recognition), which the judge follows purely for, say, selfish or malicious reasons. Rather, the practice of invoking the law as a justification for a sanction only makes sense if the status of a rule as one of law is thought by the person invoking it to have some moral significance. So, implicit in our ordinary understanding of law, according to Simmonds, is the idea that law has some special moral quality that could justify imposing sanctions on a citizen.
These rights are natural because human nature being there primary source of evolution. • Violation of human rights by the state The concept of AFSPA, can be highly refuted by this school of thought. As according to them, the man made laws can be called as just and fair, only if theyare subjected to objective moral principles, and they does not violate the natural rights of the individuals, on whom they are imposed. The state by enacting AFSPA, to attain national integrity and to fulfill the rhetoric of nationalism, tries to violate those basic human rights of the individuals, which are conferred to them by an eternal authority, which prohibits the state from violate them. The provisions of AFSPA, such as section 4(a), gives the officer in charge, a power to arrest anyone, with minor suspicion of him possessing fire arms, and anyone who is part of an assembly of more than 5 people, and even kill them , if they according to that officer are trying to abscond.