For a deeper understanding of what law really is, it is imperative that one gets to know the basic analytical and normative issues about the law. One has to know the concepts of law and the historical and contemporary persons whose input has helped shape the discourse of the philosophy of law. It is also imperative that one gets to know that law is authoritative, and is a social topic. Law is also for the common good. Understanding the nature of law has been quite a challenge to many. Theories and concepts that enable one to understand the nature of law, the role it plays in society, and the sources of its authority are collectively referred to as the philosophy of law. In English speaking world, the philosophy of law is concurrently used with the term jurisprudence, which in an actual sense refers to subdivisions of the philosophy of law. Despite the fact that the term jurisprudence is interchangeably used with the philosophy of law, clashes that have been witnessed in different schools of philosophy have prompted the portion of philosophy of law to remain untouched. Philosophy of law is never treated as a branch of philosophy like other disciplines like political philosophy or epistemology because it is not tied to the entire philosophical outlook. Fundamentals of philosophy bring out the absolute distinction between morality and law. The philosophy of law, while trying to clearly bring out the distinction between law and morality, raises very fundamental questions that include whether it is a moral duty for one to obey the law, and if the answer is to the affirmative, are there limits to it; the extent to which law of a community should seek to give effect to its morality; the existence of a legal rule which directs a kind of conduct that would breach morality and goes against the grains of morality and the one that citizens ought to obey; and finally if it is justified for a people to overthrow a legal system when it clashes with morality. The word law in the aforementioned questions implies forms of social controls that are established in modern society secularly and politically organized. Morality implies a people’s behavioral pattern at the community and society level. This paper will capitalize on Chapter 3 of Mark Murphy’s Philosophy of law: the fundamental that discusses the aims of the legislation. Unit 4 of the lecture underscores that the aims of the law and the common good are two different things as exhibited by a statement that says that philosophers have a different understanding of how to determine how the legal system should be used to promote the common good. In fact, in this respect, they give a lot of weight to the value of autonomy, the manner in which harm and benefit are defined, and finally, the role morality plays in such circumstances. Five controversial issues including laws prohibiting or prohibiting gay marriage, abortion, assisted suicide, pornography, and animal cruelty will be picked and related to constitutional provisions. The philosophical argument will then be created for or against why such laws advance a proper aim of law using the views advanced by Murphy in Chapter 3. Finally, the stance of law taken on the five issues chosen will be explained in terms of whether they advance the proper aim of law as posited by Murphy.
Philosophy of law: The Fundamentals in chapter 3 talks about the aims of legislation. It highlights the aims of law to the common good, harms to other principles, challenges to the harm to others principle enumerating the types of harms, challenges to the harm to others principle with regard to the party harmed, and finally, the morals legislation.
Laws on same sex marriage
Same sex marriages are also known as gay marriages. Beginning 21st century, some countries have drafted legislation that allow same sex marriage, notable examples being South Africa and Sweden. Parts of the United States have also recognized same sex marriages (Azzolina, 2003). The emergence of same sex marriages vary depending on the jurisdictions. This has affected existing marriage laws and judicial services that upheld constitutional provisions of equality for all. Recognition of same sex marriages has elicited religious, moral, social, and political discussions in various quarters (Gerstmann, 2004). In the United States, same sex marriages are not federally recognized. However, six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, allow same sex marriages. In fact, same sex couples in these states receive state level benefits. The US Congress, in 1996, voted in an act that defied marriage as a coming together of opposite sexes. This act outlawed same sex marriage in the states. In the Citizens for Equal Protection v. Burning of 2005 in the federal district court, the court ruled that prohibition of same sex marriages was a violation of constitution. However, this ruling was overturned in 2006 by the Court of Appeal for which held that laws prohibiting same sex marriage do not violate the United States constitution. In Supreme Court of state of Washington in the same year, it was further advanced that limiting same sex marriage furthered the government course of encouraging procreation. This was challenged in 2010 in U.S. District Court of Northern District of California where it was posited that states have never compelled people to marry depending on their ability or willingness to procreate, therefore, there was no need to make gay marriage illegal. In 2010, a federal court ruled that provisions of DOMA were unconstitutional (Rimmerman and Wilcox, 2007). This ruling was appealed against by the Department of Justice.
Arguments for or against same sex marriages
Defense of Marriages Act was right in making same sex marriages illegal in different states because the union contradicts the nature of marriage. Same sex marriages have no place for complementarity that is supposed to exist between man and woman. Moreover, same sex marriages do not fulfill purpose of sexual union because parties to this kind of union cannot enter into conjugal union. This relationship can therefore not be equated to marriage. In fact, same sex marriages subvert intent for human sexuality.
Laws on Abortion
Partial birth abortion has on myriad accounts been opposed by Congressional Republicans, House of Representatives, and the Senate since 1995 (Bartlett et al. 2004). After protracted debate on this issue, Bill Clinton vetoed it in 1996 because the laws did not take into consideration health provisions. In 2003, the house approved the ban on partial birth abortion and this became to be known as the Partial Birth Abortion Act (Calderone, 1960). The bill was passed by senate in 2003 and subsequently signed by George Bush in 2005. Its enforcement in several states was however blocked by a federal judge. Its use was upheld nationwide (Hinsch, 1990). Many states have passed the legislation on the subject of feticide (Starr and McMillan, 1995). In Dakota, the signing of pro-life statute rendered performing an abortion a felony. However, this law was repealed in a referendum of 2007.
Arguments for or against abortion
The fetus has every right to life and this should not be alienated from them. Therefore, there can never be any exceptions with reference to abortion like cases of deformity and rape. In fact, the exceptions eat up the rule. The doctrine of double effect should not be applied in cases of ectopic pregnancy because in essence, the physician intends to perform an abortion hence a desire to kill (Warren, 1973).
Laws on Assisted suicide
In the United States, laws regulating assisted suicide vary depending on states. In nine states, assisted suicide is criminalized through common law. These are Alabama, Idaho, Maryland, Massachusetts, Michigan, Nevada, South Carolina, Vermont, and West Virginia. North Carolina, Utah, and Wyoming have abolished common law of crimes and therefore do not have statutes that criminalize assisted suicide. State Supreme Court in Ohio in October 1996 ruled that assisted suicide is not a crime. Virginia does not have clear legislation on assisted suicide, besides, there are also no statutes that criminalize the act. However, a statute exists that imposes civil sanctions on people who assist in a suicide (Willke, 2011). Oregon and Washington allow physician assisted suicide.
Philosophical arguments on assisted suicide
People who decide to kill themselves because of the pain they are suffering should know that pain can be controlled with modern medicine. People who undertake to kill themselves do not need any law but a physician. Moreover, terminally ill patients suffer from depression which sometimes drives them to contemplate killing themselves, depression can actually be treated. Hence, there is no reason for them seeking assisted suicide.
Laws on child pornography
There is no clear cut legislation that talks about child pornography in the United States. Perhaps much of this is talked about in copyright laws and children laws.
Laws on cruelty to animals
All states in the U.S have laws that prohibit cruelty to animals. 41 states and the District of Columbia have felony provisions for animal cruelty. The Animal Welfare Act in federal law gives provisions for research facilities and other institutions on how they should handle animals. The Act was passed in 1966.
Philosophy behind cruelty to animals
The notion that animals’ rights are routinely and systematically violated is an absolutist position because all subjects of a life have equal rights. Any practice that disregards animals’ rights position is wrong in its entirety (Stray Pet Advocacy, 2011).
Murphy’s aims of law in relation to laws on abortion, child pornography, assisted suicide, cruelty to animals, and same sex marriages.
Murphy reminds us that the law, other than being authoritative, should serve social and common good duties (Murphy, 2006). With regard to same sex marriage, the law should ensure that the description of marriage is fully understood and deciphered from relationship. Anything that does not serve continuity and procreation should not be treated as a marriage. The context of marriage in our modern society may change from serving the complementarity purposes of the spouses but it should not be confused for a relationship. When the common good perspective is invoked, then terminating the life of an unborn child because the mother was raped does not culminate into common good. For the purposes of keeping children from things that may obstruct their general development, they should be protected from any form of pornography until they attain majority age. Nobody has right to terminate his or her life either on medical condition or old age. In fact, problems are never solved by eliminating people who have those problems.
References
Azzolina, D. (2003). The End of Gay (and the Death of Heterosexuality. Library Journal, 288.
Bartlett, L.A. et al. (2004). Risk factors for legal induced abortion-related mortality in the United States. Obstetric Gynecology, 103 (4), p.729–37.
Calderone, M.S (1960). Illegal abortion as a public health problem. Journal of Public Health, 50, p.948.
Stray Pet Advocacy. (2011). Cruelty Laws. Web.
Gerstmann, E. (2004). Same-sex marriage and the Constitution. Cambridge: Cambridge University Press.
Hinsch, B. (1990). Passions of the Cut Sleeve. California: University of California Press.
Murphy, M. (2006). Philosophy of Law: The fundamentals. Hoboken, NJ: Wiley-Blackwell.
Rimmerman, C. A., and Wilcox, C. (2007). The politics of same-sex marriage. Chicago: University of Chicago Press.
Starr, C., and McMillan, B. (1995). Human Biology. Belmont, CA: Wadsworth.
Warren, M.A. (1973). On the Moral and Legal Status of Abortion, The Monist, 57(4), p. 159-168
Willke, J.C. (2011). Euthanasia facts. Web.