Legal Moralism refers to the law’s propensity to legitimately prohibit individual behaviors that are inconsistent with the collective moral judgments held by a society. The individual behaviors need not be injurious to any other person in the community, but could be outside the established morals in a society. Accordingly, the law has the right to prohibit behaviors that pose a risk of injury to the moral ideals in the specific society. Shared morality in a society on the other hand refers to the shared common thought among people, which defines what is right and wrong in their context. The law contribution to the society therefore is ensuring that individual freedoms that could conflict with the collective morality in the society are restricted. Consequently, the law acts as a guide on how people should behave and act in the society.
According to Dworkin (2005), the doctrine of legal moralism works because societies have fundamental agreements regarding what is good or bad in the society. Such agreements are meant to hold the society together bound by the morality bond. Moralists argue that the bondage advanced by morality is the price that people need to pay in order to remain within orderly societies.
Legal paternalism
As stated by Dworkin (2005), legal paternalism is the doctrine that the law had requirements meant to prevent individuals from undertaking actions or behaviors that could be self injurious. Such provisions in the law intend to shield an individual from emotional or physical self-inflicted harm. In an attempt to do this, the law interfere with an individual’s liberties by coercing him or her to act or behave in a specific manner. Analysts suggest that legal paternalism is intended to preserve the person’s good, welfare, needs, values and interests by coercing them to behave in a manner that is beneficial to their well-being.
Examples of legal paternalistic laws include those that require drivers to wear seatbelts, cyclists to wear helmets, anti-drugs legislation among. The coercive forces of the law can also “force” an individual to get an education regardless of whether they think the education will be of any good to them or not. According to Dworkin (2005), the extent of legal paternalism is judged by the extent of the decisions that people make. As such, the legitimate paternalistic tendencies in law should only be able to protect people from decisions and actions that are dangerous, far-reaching and irreversible. To this end, it is assumed that a rational person would naturally keep off the activities and behaviors that are guarded against by legal paternalism.
Legal realism
Legal realism is a set of theories that offer different descriptions about the reality of law. The theories take as fact that legal rules are mainly made by judges who consider the interest of public policy and interests of the society before deciding a case. As such, legal realism downplays the judge’s use of the law as the basis of judicial rulings. The three ideas that form the basis of legal realism are:
- Indeterminacy of law: this is the believe that the results of legal disputes is not only guided by the law, but by the judge’s perception of the case
- Discretion: This is the claim that judges make “new laws” when deciding cases through exercising judicial discretion
- Legal Instrumentalism: This is the belief that the law is meant for use in achieving social purposes and balancing conflicting social interests.
Justifications for punishment for law breakers
Punishment is defined as a legitimate act in law meant to inflict discomfort in a purpose for purposes of making them ‘pay’ in equal proportion to the offence they committed, teach them a lesson, deter other people from committing similar offences and prevent them committing similar offences in future. The justification for punishment in law includes:
Retribution: This view holds that a person who commits a crime should suffer the proportionate consequences of his or her actions. This justification however raises several questions, including how the consequences of the crime committed are decided, and whether it is within the moral precincts of law for anyone to inflict suffering on another person.
Deterrence: This justification is argued on a social perspective, where it is assumed that punishments on the wrong doer deters other people in the society who could have similar wrong doing motives for committing offences. Critics of this justification argue that the wrongdoer is used as a means to attain beneficial effects on the larger society.
Preventative: According to this justification; punishing a person by denying some of their rights to associate freely through incarceration could prevent them from committing further crimes in the society for the time of their internment.
Rehabilitative: This justification argues that punishment helps reform the offender through appealing to his or her moral character.
Restitutionary: this Justification argues that the offended party often at times desires and therefore deserves compensation for the offence committed against them. As such, the sentence offered based on this justification seek to punish the offender in proportion to the loss incurred by their victim. Critics of this justification argue that it fails to draw a distinction between punishment and compensation.
Reference
Dworkin, G. (2005). Paternalism. Stanford Encyclopedia of Philosophy. Web.