Law and Legal Professionals
Laws exist for five basic reasons, and all of them can be abused.
1. The Harm Principle Laws created under the Harm Principle are written to protect people from being harmed by others. Laws against violent crime and property crime fall into this category. Without basic Harm Principle laws, a society ultimately degenerates into despotism--the rule of the strong and violent over the weak and nonviolent.
2. The Parental Principle In addition to laws intended to discourage people from harming each other, some laws are written to prohibit self-harm. Parental Principle laws include compulsory attendance laws for children, laws against neglect of children and vulnerable adults, and laws banning the possession of certain drugs. Some Parental Principle laws are essential to protect children and vulnerable adults, but even in those cases they can be oppressive if they are not narrowly written and sensibly enforced.
3. The Morality PrincipleSome laws are based not strictly on harm or self-harm concerns, but also on promoting the personal morality of the law's authors. These laws are usually, but not always, grounded in religious belief. Historically, most of these laws have something to do with sex--but some European laws against Holocaust denial and other forms of hate speech also appear to be motivated primarily by the Morality Principle.
4. The Donation Principle All governments have laws granting goods or services of some kind to its citizens. When these laws are used to control behavior, however, they can give some people, groups, or organizations unfair advantages over others. Laws promoting specific religious beliefs, for example, are gifts that governments extend to religious groups in hopes of gaining their support. Laws punishing certain corporate practices are sometimes used to reward corporations that are in the government's good graces, and/or to punish corporations that are not. Some conservatives argue that many social service initiatives are Donation Principle laws intended to buy the support of low-income voters, who tend to vote Democratic.
5. The Statist Principle The most dangerous laws are those intended to protect the government from harm, or to increase its power for its own sake. Some Statist Principle laws are necessary--laws against treason and espionage, for example, are essential to the stability of government. But Statist Principle laws can also be dangerous--laws restricting criticism of the government, such as flag burning laws that prohibit the desecration of symbols that remind people of the government, can easily lead to a politically oppressive society full of imprisoned dissidents and frightened citizens who are afraid to speak out.
1. The Harm Principle Laws created under the Harm Principle are written to protect people from being harmed by others. Laws against violent crime and property crime fall into this category. Without basic Harm Principle laws, a society ultimately degenerates into despotism--the rule of the strong and violent over the weak and nonviolent.
2. The Parental Principle In addition to laws intended to discourage people from harming each other, some laws are written to prohibit self-harm. Parental Principle laws include compulsory attendance laws for children, laws against neglect of children and vulnerable adults, and laws banning the possession of certain drugs. Some Parental Principle laws are essential to protect children and vulnerable adults, but even in those cases they can be oppressive if they are not narrowly written and sensibly enforced.
3. The Morality PrincipleSome laws are based not strictly on harm or self-harm concerns, but also on promoting the personal morality of the law's authors. These laws are usually, but not always, grounded in religious belief. Historically, most of these laws have something to do with sex--but some European laws against Holocaust denial and other forms of hate speech also appear to be motivated primarily by the Morality Principle.
4. The Donation Principle All governments have laws granting goods or services of some kind to its citizens. When these laws are used to control behavior, however, they can give some people, groups, or organizations unfair advantages over others. Laws promoting specific religious beliefs, for example, are gifts that governments extend to religious groups in hopes of gaining their support. Laws punishing certain corporate practices are sometimes used to reward corporations that are in the government's good graces, and/or to punish corporations that are not. Some conservatives argue that many social service initiatives are Donation Principle laws intended to buy the support of low-income voters, who tend to vote Democratic.
5. The Statist Principle The most dangerous laws are those intended to protect the government from harm, or to increase its power for its own sake. Some Statist Principle laws are necessary--laws against treason and espionage, for example, are essential to the stability of government. But Statist Principle laws can also be dangerous--laws restricting criticism of the government, such as flag burning laws that prohibit the desecration of symbols that remind people of the government, can easily lead to a politically oppressive society full of imprisoned dissidents and frightened citizens who are afraid to speak out.
Laws play a key role in our society. A society’s ethics and morals are reflected in its laws. Durkeim suggests that we use laws to define the boundaries of behavior. Natural law is that which exists in the natural world. According to Hobbes, man’s natural state is a combative and self-serving one, and we need to form societies in order to survive. Hobbes and Locke developed the concept of the Social Contract, which essentially states that we voluntarily relinquish certain freedoms in order to gain protection and security. Determining how exactly to balance the opposing forces of freedom and security is a delicate process and people will disagree as to how that balance should appear. The safer we are (through laws and law enforcement) the less freedom we have, and vice-versa.
“Positive” law is that which is written and enforced by society, and we see two types: civil and criminal. Civil law repairs wrongs, criminal law punishes those who violate society’s laws and standards.
The major justification for criminal law is the prevention of harm: harm to others, harm to one’s self, and harm to society. Paternalistic laws (those which protect us from ourselves) are justified according the “ethics of care.”
Three primary paradigms exist to identify and describe the powers behind a society’s laws. The consensus paradigm suggests the community agrees on goals and standards, and that repressive (criminal) laws maintain the social cohesion. This paradigm suggests that although we are individuals, we are part of a greater, living whole. This has been termed “organic solidarity.” The consensus paradigm portrays law as representative of the people, as reinforcing social cohesion, and as value-neutral (applying the same to everyone).
The conflict paradigm declares that governance is based on power and that laws are used to maintain the imbalance of power. Those in power make the laws and use them to keep others “down.” Under this paradigm, the law is repressive and not value-neutral.
The last paradigm is “pluralist,” which suggests that the law is dynamic and controlled by the interest group whose voice is most powerful at the time.
The goals of the criminal courts may be defined more by “bureaucratic efficiency” than justice for individual cases. Heavy caseloads require an emphasis on processing cases to a satisfactory conclusion (including frequently by plea bargain). The adversarial relationship on display in the courtroom masks the true nature of the cooperative relationship that exists among the officers of the court. The same attorneys who oppose one another vehemently during a trial must work together to dispense with the many cases on the docket.
Applying ethics to the role of the attorney brings up the debate regarding the role of the attorney as either a “legal agent” or a “moral agent.” The “legal agent” perspective defines the attorney’s role as a legal tool being used by the client. This viewpoint accommodates ethically questionable actions in the name of pursuing the client’s best interests. The “moral agent” perspective requires the attorney to remain true to his own moral code, even if it clashes with the client’s wishes. Cohen writes in favor of the moral code (see text) and cites the “ethics of care” to justify this viewpoint.
“Positive” law is that which is written and enforced by society, and we see two types: civil and criminal. Civil law repairs wrongs, criminal law punishes those who violate society’s laws and standards.
The major justification for criminal law is the prevention of harm: harm to others, harm to one’s self, and harm to society. Paternalistic laws (those which protect us from ourselves) are justified according the “ethics of care.”
Three primary paradigms exist to identify and describe the powers behind a society’s laws. The consensus paradigm suggests the community agrees on goals and standards, and that repressive (criminal) laws maintain the social cohesion. This paradigm suggests that although we are individuals, we are part of a greater, living whole. This has been termed “organic solidarity.” The consensus paradigm portrays law as representative of the people, as reinforcing social cohesion, and as value-neutral (applying the same to everyone).
The conflict paradigm declares that governance is based on power and that laws are used to maintain the imbalance of power. Those in power make the laws and use them to keep others “down.” Under this paradigm, the law is repressive and not value-neutral.
The last paradigm is “pluralist,” which suggests that the law is dynamic and controlled by the interest group whose voice is most powerful at the time.
The goals of the criminal courts may be defined more by “bureaucratic efficiency” than justice for individual cases. Heavy caseloads require an emphasis on processing cases to a satisfactory conclusion (including frequently by plea bargain). The adversarial relationship on display in the courtroom masks the true nature of the cooperative relationship that exists among the officers of the court. The same attorneys who oppose one another vehemently during a trial must work together to dispense with the many cases on the docket.
Applying ethics to the role of the attorney brings up the debate regarding the role of the attorney as either a “legal agent” or a “moral agent.” The “legal agent” perspective defines the attorney’s role as a legal tool being used by the client. This viewpoint accommodates ethically questionable actions in the name of pursuing the client’s best interests. The “moral agent” perspective requires the attorney to remain true to his own moral code, even if it clashes with the client’s wishes. Cohen writes in favor of the moral code (see text) and cites the “ethics of care” to justify this viewpoint.
pollock_ethics_8e_ch08.ppt | |
File Size: | 1437 kb |
File Type: | ppt |
A Civil Action- This youtube video is a brief summary of the movie's content. We will watch this entire movie. ( Providing time permits)
Break out groups will cover these 2 situations
Situation 1 - Things to think about
You are a district attorney prosecuting a burglary case. The defendant is willing to plead guilty in return for a sentence of probation, and you believe that this is a fair punishment because your evidence may not support a conviction. However, the victims are upset and want to see the offender receive prison time. They insist you try the case, what should you do and what will you say?
Situation 2 - Things to think about
You are a prosecutor with the unwelcome task of prosecuting a 12-year-old boy for a brutal assault. You personally believe the child basically went along with his older brother in the assault and you think he should have been left in the juvenile system. However, the juvenile court judge waived him to the adult system, and the media and the victim’s family are demanding that he be tried as an adult. You have to decide whether to try him for attempt murder, assault or some lesser crime. You could deny the waiver and send the case back to juvenile court. What will you do? How will you determine your duty?
You are a district attorney prosecuting a burglary case. The defendant is willing to plead guilty in return for a sentence of probation, and you believe that this is a fair punishment because your evidence may not support a conviction. However, the victims are upset and want to see the offender receive prison time. They insist you try the case, what should you do and what will you say?
Situation 2 - Things to think about
You are a prosecutor with the unwelcome task of prosecuting a 12-year-old boy for a brutal assault. You personally believe the child basically went along with his older brother in the assault and you think he should have been left in the juvenile system. However, the juvenile court judge waived him to the adult system, and the media and the victim’s family are demanding that he be tried as an adult. You have to decide whether to try him for attempt murder, assault or some lesser crime. You could deny the waiver and send the case back to juvenile court. What will you do? How will you determine your duty?
https://uw-media.shreveporttimes.com/embed/video/25048993?placement=snow-embed
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Prosecutor convicted an innocent man on murder charges. He now realized the mistake he made. |