revision lecture

Law and Society 2010Revision Session

Anne Cheung

& Marcelo Thompson1

Have you started your revision?

Topics covered• Law and Morality

• Law and Technology

• Euthanasia

• Law and Religion

• Law and Ethics – Duty to Save?

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I. Law and Morality

The Hart vs. Devlin Debate

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The crux of the debate:

Should law intervene with our private behavior?

Why and why not? When?

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What is the

purpose / role / message

of the law

E.g. Homosexuals, transsexuals, bisexuals

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How does the Hart vs. Devlin Debate apply to other social issues in the context of regulation

by the law?

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Lord Devlin’s

The role of law:

• Social cohesion

• Moral cement

• Protecting the youth

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Lord Devlin’s

No distinction between public and private

Moral standard is not absolute but dependent on social sentiment at a given time

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Lord Devlin’s

Moral Standard to be ascertained by asking the jury > common people

Public opinion should then be enforced by criminal law

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Hart’s

Personal liberty

Private acts• Sexual activities between consenting adults in

private

Harm principle (J. S. Mill)

None of law’s business

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Have you grasped the following?

Law reflects a hierarchy

• Recognizes only certain “categories” of persons

Not everyone is equal before law

• E.g. we only recognize and protect the interests of heterosexuals

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Harm Principle

• Does it work?

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Is there any “private” act, since we are living in a society?

Public policy and easy management

• Reasons to justify the sacrifice of others’ interests?

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Application –Transsexuals’ Right to Marriage

SCMP, Aug 11, 2010, C1

Ming Pao, Aug 9, 2010

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Application –Compensated Dating

What is your opinion?

Age of participants; consent; aim

Is it just prostitution?

What’s wrong with selling one’s ‘companionship,’ body, photos, images…

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II. Law & Technology

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II. Law & Technology

Finland, France, amongst other countries,

Recognize Access to the Internet as a Human Right

What is the Internet?

Is it the Internet of the Mainland?

Or it is the Internet of Finland?

It is a thing; an object; of our social, legal relationships;

Like all objects, Internet may be enacted in different ways;

And it is enacted in different dimensions (J.Law > topologies)

Euclidean (Geographical, Factual) -- cables, architecture, geographical frontiers;

Networks (Conventional, Normative) -- standards, protocols, law, politics;

Fluids -- technologies change; if they don't, when we expect them too, they get broken in our conventions;

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Do Artefacts Have Politics?

These dimensions interact, they exist together;

As they exist together, when we look at technologies from their

normative dimension, we can say that their architectures reflect

certain political properties; that technologies have politics;

In which cases, according to Langdon

Winner, can we say that technologies have

political properties?

It is also in their normative dimension that technologies will relate

to morality;

Can we situate the moral questions

raised by technologies within the Law

and Morality / Hart v. Devlin debate?

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Law and Technological Change

Also, when we approach technological artefacts from their fluid dimension, we understand the problem of technological change;

What are the challenges / problems face by the law because of technological change?

How does law respond to technological change?

What is the role of its different institutions?

Should Courts and Administrative Agencies play a wider role?

Does it make sense to expect the law to be neutral with regard to technology? How does the debate on technological neutrality relate to the debate on law and morality?

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Problems of Technological Change (1)

Do We Need New Law?

Can we solve problems by other means? e.g. by technological design, by ethical adaptation

Is the Law Uncertain?

How to apply the law to the facts?

Ambiguity, Vagueness, Contestability;

Examples: e-signatures, software, in vitro, Internet; Questions: One in the swarm in BitTorrent = distributor?

Is the Law Over or Under-Inclusive?

Focuses on one goal, but includes more or less;

Examples: Privacy on Facebook(seen in class)

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Problems of Technological Change (2)

Obsolescence

Regulated conduct less important

Justification no longer exists

Law is no longer cost-effective (e.g. copyright)

Can we solve the problems with technological neutrality?

Difficulty of avoiding discrimination (e.g. ABS brakes) –“highest level” problem

Problem of the definition. What does technological neutrality mean? (e.g. functions v. language, architecture)

Problem of political orientation (political neutrality)21

II. Euthanasia

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What is Euthanasia?

What is Euthanasia?

The different ways of classification:

• Voluntary vs. Non-voluntary

• Active vs. Passive

Is the distinction between active and passive euthanasia a ‘valid’ one?

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Challenge

What rights are involved?

• Right to die?

• Dignity?

• Privacy?

• Autonomy?

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Challenge

Who should decide?

• Patient?

• Family?

• Doctor?

• Court?

• Society?

Why?25

Authorities – Pretty v UK

Right to private life art. 8 of ECHR

Why did Pretty fail to convince the court?

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Authorities –Pretty v. UK

Analysis

• Does the claim fall within the protected scope of right

• Is there interference by the authority?

• Is such interference justified?

In accordance with the law/prescribed by law

Necessary

Stated legitimate purpose

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Our approach…Issue ?

Scope of right protected under

HKBOR?

Right infringed?Infringement in

accordance with law?

Infringed for a legitimate purpose?

Infringement necessary in a

democratic society?Proportionality?

28End of story

No

Yes

Pressing social need?

Authorities –Purdy

Issue?

“In accordance with the law”• Sufficiently accessible

• Precise

• Consistently applied

• Predictable

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Authorities –B v NHS Hospital Trust

Did the Court grant Ms. B her wish?

Why?

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Dworkin’s Principles

1. Sanctity of life

The best way to respect life value, maybe to die with dignity

2. Autonomy and dignity of individual

3. Best Interest of Patients

Which one should be paramount?

Why?

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III. Law and Religion32

The law protects each individual’s freedom to “manifest” his own religion

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What if religious right clashes with other rights…

Is it justifiable to violate one

right for protecting

another?

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What is the role of law in regulating certain harmful practices although revered by religion?

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Starting Point: The Guarantees of the Law

Our rights are protected under:

• BL Arts 32, 24, 40, 41, 39, 141

• HK BORO Art 1, 22

• ICCPR Art 18(1)

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A question of public vs. private?

A question of confronting rights?

Fundamentality of religion?

Confusion of religions with morality?

Is it about rights? Or both?

Law and Religion

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Starting Point: The Guarantees of the Law

ICCPR Art 18(3)

• Pressing social need

• When may government may intervene?

• Proportionality

• To what extent?

“Public morals” or “public safety” ?

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When should law intervene religious activities?

What is our expectation from the law as a society?

Should private conducts lay outside law’s domain

• i.e. between individuals or within a family?

Should conducts within a particular religiouscommunity in HK still be regarded as “private”?

Law and Religion

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Which “rule” prevails? Constitutional

protection of religious freedom?Protection of

fundamental rights under international law?

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Which view prevails?

International standard?

Majority view?

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HKBOR?






42End of story

No

Yes


V. Law and Ethics - Duty to Save?

What is Ethics?• A study of what is good and what

is a good life

• Basic premise: If something bad happens…I should…

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Peter Singer’s

Basic premise:

• Suffering and death from lack of food, shelter and medical care are bad

• If it is in your power to prevent such, without sacrificng anything nearly as important, it is wrong not to do so

Therefore, we should help

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V. Law and Ethics - Duty to Save?

Difficult Question

How much?

And how to apply to the legal context

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Difficult Question

Strong version

• Give until we reach the level of marginal utility, up to the point of sacrificing something of comparable moral significance

• Till it hurts, not giving the ‘left-over’ that we have

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Moderate version

• Till we need to sacrifice something morally significant

• > we need to make big change in our lives

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Difficult Question

Legal Context

Shall we have Samaritan Law?

Active?

• Should help those in life-threatening situation?

Passive?

• At least not block the way of rescue?

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Legal Context

Feinberg’s argument:

Decent Samaritan > Good or Splendid Samaritan

Organ donation; ambulance rescue

Otherwise our omission causes “harm” to others

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Exam is fun…

Only if

you know how to conquer it.

Exam Format

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Choose 3 questions out of 5

At least one from each part

• Part A: set by Albert & Scott

• Part B: set by Anne & Marcelo

Time: 2.5 hours (including 15 minutes reading time)

PLAN!

before you attempt a question

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Introduction

What controversial topics does Q highlight?

What are the issues arising for discussion based on the facts?

What is YOUR task / role?

• Lawyer? Advisor?

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Points to Note

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READ the instructions!!

Only write with BLACK or BLUE ball pen

Practise writing

If your handwriting is illegible, write on alternate lines

Only use abbreviation when you have introduced the full name e.g. ICCPR

Do not write in point form unless you run out of time…

Structure

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For each issue in the problem, discuss:

• Facts Legal Position based on Facts

• Traditional Defence / Arguments

• Problems / Controversies re: application of standard arguments.

• In light of these difficulties, your recommendations

Conclusion

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Advice? Recommendation?

Here we go: Essay-type Question

“Euthanasia is inherently wrong because it violates the nature and dignity of human beings.”

Please comment critically.

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Your Approach/Brainstorming

Understanding the question:• Define key terms

• What is the argument asserting? The arguments in the argument? The underlying assumptions?

Authority: • Did any legal scholars ever express opinions on those

views?

• Any cases that cover the issue? Any ratio that you can recall from those cases?

Your stance?

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Structure

Introduction

Your understanding of the quote

Brief statement of your own argument

Your argument should run through your whole answer and tie your propositions tightly together

Tackling the below key points…

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“Euthanasia is inherently wrong because it violates the nature and dignity of human beings.”

Please comment critically.

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What is Euthanasia?

The term itself suggests “good death”

There may be different forms of euthanasia: • active; passive; voluntary; non-voluntary;

involuntary

In all those cases, the essence is• The killing of a person

• Deliberate and intentional

• Whom he or a third party considers his life is hopeless

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Why is it wrong? What’s wrong with it?

Wrongfulness: • killing of an innocent

person is wrong

• an obligation not to kill

One ought not to do> we are in the realm of moral legal reasoning

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Nature and Dignity of Human Beings? Nature:

• To survive; life itself is sacred

Dignity:

• To seek life, to live;

Therefore euthanasia:

Leaves no room for ‘miraculous’ recovery

Incline us to give up too easily

Against medical/society commitment to save life

Slippery slope may lead to serious and harmful fall

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Your Understanding of the Quote

Euthanasia amounts to a form of killing in hopeless cases, often in hopeless ill cases

Though it may be voluntary and the person is suffering, it is against human nature to seek death; a denial to human dignity to treat a person as better dead

From a macro perspective and in the long run, it is harmful to society

Authority: Pretty; ratio

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Your Analysis

Inherently wrong: the ought standard How do we decide what is morally right? Is killing always wrong? Why is self defense

justified? Prima facie not to cause injury/not to cause harm

(Hart/Mill’s principle) Is euthanasia non injurious killing? E.g. mercy

killing for animals; different examples mentioned by Peter Singer

Knowledge of the patient: to respect his wish> autonomy

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Alternative View of Nature and Dignity

Nature and Dignity • To seek living out a full life

Endless and meaningless suffering is against human dignity

Who should decide? Dworkin; the case of B

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Alternative View of Nature and Dignity

If you agree with them… Killing a person is not necessarily always

wrong, wrong only if and because it Is an injury of someone And because it is contrary to the known

preferences of someone

What type of euthanasia may be wrong?

You need to address slippery slope argument

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Your conclusion?

You don’t need to agree with the proposition

There is no fixed answer

But your argument must be coherent

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Q. 5 (Exam 2009-10)

Issue

(a) whether the U’s new policy may have violated Kam’s freedom of religion?

Freedom of religion (HKBOR, art. )

3 Step approach

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HKBOR?






71End of story

No

Yes


Q. 5 (Exam 2009-10)

3 Step approach

1. Does Kam’s concern fall within the scope/engage the right of freedom of religion? How?

2. Infringement

3. Justification

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Justification

Prescribed by law (Purdy)

Served a legitimate purpose

Necessity test

Can the University satisfy all the tests?

Any distinction between Kam and new students?

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Q. 5 (Exam 2009-10)

Issue: Dear Students…

(b) draft a letter

Structure:

Rationale behind the new rules

Exception on grounds of health and freedom of religion

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Q. 5 (Exam 2009-10)

Rationale of Compulsory policy on blood donation

Red Cross: situation has become urgent> life saving

Singer: duty to save, why? Up to what point?

Feinberg: is this an act of omission? Is this easy rescue?

What about Rand’s argument?75

Q. 5 (Exam 2009-10)

Grounds for Exemption

1. health;

2. religious belief;

3. only apply to new students but current students are strongly encouraged**

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Common Problems in Past Answers

Legal analysis missing??

Without application of law to facts

Mix up religious and cultural rights

Failed to mention Singer

Assume Devlin would support blood-donation

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Good bye!

If you haven’t started your revision, be quick.

Good luck to your exams!

Have a Nice Holiday!!

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