The Moral Scale

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  • As considering whole range of moral issues, we may conveniently imagine a kind of scale or yardstick which begins at bottom with most obvious demands of social living and extends to highest reaches of human aspiration.
    • “Somewhere along that line there is an invisible pointer where the pressure of duty leaves off and the challenge of excellence begins.”[10]
    • War of moral argument is over location of this pointer.
    • To find it, must know what is perfect life – if you accept this, then drawing line is pointless because MOD must borrow standards from MOA.
      • This view has led to diametrically opposed conclusions concerning the objectivity of moral judgments.
        • One side: Fact of experience that we know and agree on what is bad, thus must follow that we have shared picture of what is perfectly good (Platonic Socrates)
        • Other side: Men do not agree on what is perfectly good, our apparent agreement of what is bad is perhaps an illusion, born of social conditioning, habituation, and shared prejudice.
        • Both rest on idea: must know good to know bad
  • In whole field of human purpose, we find rejections of idea that we must know perfectly good to identify the bad
    • E.g No human tool is perfectly suited to any task, but designed to accomplish indefinite range reasonably well.

MOA

    • MOA
      • Q: Is it activity worth of man’s capacities? Answer: No, it’s a kind of fetish, enjoying cultivation of risk for its own sake, not in the pursuit of, eg,  some higher artistic aim. So, gambling unfit for humans.
      • MOA as law maker?: No direct bearing at all. Law cannot compel man to live up to excellences of which he is capable.  
      • For workable standards  MOD – look into Dentist Calgary
      • But MOA has pervasiveness of its implications: rules of contract and tort, some key principles were not present in early stages of law but now are and represents the fruit of centuries old struggle to reduce the role of the irrational in human affairs.
      • Still, no may to compel reason, only seek to exclude from his life grosser and more obvious manifestations of chance and irrationality.

THE TWO MORALITIES

  • Content of chapters – because unhappy with existing literature about relation between law and morality. Two major deficiencies:
    • 1. Failure to clarify the meaning of morality itself. It is assumed we all know what morality means! But that is not the case.
      • In chapter 1, I try to redress this by highlight distinction between morality of duty + morality of aspiration.
    • 2. Neglect for Morality that makes law possible. Focus on “legal justice”, treat like alike, but little recognition that problem thus adumbrated is only one aspect of much larger problem – clarifying directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be evil.
  • Chp. 3 attempt to bring the analysis of the first two chapters into relation with various schools of legal philosophy.
  • Chp4 seeks to show how proper respect for internal morality of law limits kinds of substantive aims that may be achieved through legal rules – closes by showing how something like a substantive “natural law” may be derived from the morality of aspiration.

The Moralities of Duty and Aspiration as seen in abogados de accidentes de carro

  • Distinction between morality of aspiration and morality of duty
    • Morality of aspiration most plainly exemplified in Greek philosophy: it is the morality of the Good life, or excellence, of fullest realisation of human powers.
    • May be overtones of duty to get there, and if fail to realize fullest capacities, he would be found wanting, not for being recreant to duty, but for shortcoming, not wrongdoing.
    • Rather than right or wrong, we have beseeming conduct.
  • Morality of aspiration starts at TOP of human achievement, morality of duty starts at BOTTOM (ie, lays down basic rules necessary for society)
    • MOD = Old Testament morality “thou shall”, “thou shall not”. Condemns men for failing to respect basic requirements of social living.
  • Metaphor to help distinguish MOD and MOA:
    • MOD = rules of grammar
    • MOA = rules of what is sublime and elegant composition of writing. (these are more vague that basic rules of grammar)
  • How would moralities view gambling?
    • MOD
      • hypothetical moral legislator would have to decide if gambling harmful so as to refrain from engaging in it.
      • Would realise that marginal utility not good with gambling.

Article 8

Where a particularly important facet of an individual’s existence or identity is in issue under Art 8,
the court will be less likely to accept that a contracting party should be afforded a broad discretion
and margin of appreciation e.g. X and Y case (young mentally handicapped girl who had been
sexually assault yet only a civil claim possible: breach of Art 8); Z v Finland (fundamental importance
of medical data); and Dudgeon (homosexual activity- sexuality most intimate part of one’s identity;
despite morality usually being large margin of appreciation).
Where two parties’ rights in issue e.g. Evans (wish of women to become pregnant using embryos
frozen vs man’s right- consent of both required: wide margin of appreciation as legislative scheme
had come after a lot of consideration, consultation and debate).
S and Marper – retaining of DNA data but UK alone in adopting such an extensive scheme so no wide
margin of appreciation.
Handyside – large margin where areas of morality.
Cases where wide margin of appreciation allowed because of lack of common ground in Europe can
(e.g. Rees – changing entries on birth certificates; cf Dudgeon- no longer appropriate in most states
for homosexual practices to have criminal sanctions) be seen as further examples of the principle
that the nature of the individual right determines the breadth of the margin since a divergence in
national law may indicate that the nature and degree of importance of the individual interest is still
in the process of being understood, recognised and accepted.

 

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