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Murphy/Coleman, "Moral Theory and Its Application to Law"
 normative jurisprudence: morally evaluating law
Moral Philosophy
Formalist (content neutral):morality could be anything
Hare: a moral judgment has 3 characteristics:
 Prescriptive
 Universalizable
 Overriding
Content theory: morality is a social solution to problems of survival
 Moral principles: concerned with maintaining social
relations with respect to vital interests
Relativism v. absolutism
widespread disagreement leads some to believe morality is relative.
absolute values based on religion are no longer acceptable
the only way to address such skepticism without appeal to faith is
through rational argumentation: philosophy (moral theory)
Kantianism and Utilitarianism
Q: What is human nature?
 Kant: rationality
 Utilitarianism: pleasure seeking
Q: What is of vital interest for humans?
 Kant: freedom
 Utilitarianism: happiness
Q: What is our primary moral concern?
 Kant: protecting rights (respecting human autonomy)
 Utilitarianism: promoting social welfare (maximizing happiness)
Q: What (who) is morally relevant?
 Kant: the capacity to make rational choices (autonomy)
 Utilitarianism: the capacity for pleasure and pain (sentience)
Utilitarianism and Social Policy
 Mill was an empiricist
o Empiricists believe that knowledge is based on experience
through the senses.
o If we are to know the difference between right and wrong, we
must be able to investigate it with our senses.
Mill’s argument for utility:
Three stages:
I.
II.
III.
Happiness is desirable.
The general happiness is desirable.
Nothing other than happiness is desirable.
Stage One: Happiness is desirable.
Argument for stage one:
1. If you think about what you desire, you will find that your
desire pleasure.
2. You have no reason to think of desire as flawed
3. Pleasure is good.
Stage Two: The general happiness is desirable.
Argument for stage one:
1. Happiness is a good.
2. Each person’s happiness, therefore, is a good to the
aggregate of persons.
3. Notice that stage two assumes the principle of
impartiality: equal amounts of happiness are equally
desirable.
Stage Three: Nothing other than happiness is desirable.
1. Persons desire only pleasure or happiness as an end and
nothing else.
2. Happiness is not an abstract idea but a concrete whole and
these (virtue, health, money) are merely some of its parts.
3. Nothing is desired but happiness.
 Intrinsic good: an end in itself
 Extrinsic good: good as a means to something else (an end)
PRINCIPLE OF UTILITY:
 Act so as to create the greatest amount of happiness, and the least
amount of pain, for the greatest number of people
(GHP: greatest happiness principle)
"Scapegoat" counterexamples:
 the "tyranny of the majority"
 standard objections to utilitarianism point to cases where utility
seems to be maximized by oppression or exploitation of a minority.
Mill's response to scapegoat objections:
There are two parts to the idea of justice:
 A belief that someone has been harmed.
 The desire to punish people that cause harm.
This desire comes from:
 The natural impulse to defend oneself
1. Natural feeling of sympathy human beings have for one another.
2. Our sense of justice is aroused by our need for security.
C: Utilitarianism will support the sense of justice since respecting
that sense will maximize happiness in the long run.
However, one could agree with Mill on the origin of justice, and disagree
with his reasons for its morality.
In other words, some people argue (Kant for example) that human beings
really have rights, apart from any utilitarian claim that it is useful to act as
if humans have rights.
KANT'S CATEGORICAL IMPERATIVE:
 Act so as to treat humanity, whether in your own person or in that of
any other, always at the same time as an end, and never merely as a
means.
All rational beings have a RIGHT not to be used for the benefit of others.
 It is impossible to never treat someone as a means, but I must never
treat a rational being as a mere means
 e. I must never treat someone as though he or she had no value in
themselves except as a means to my subjective end.
Anything that prevents you from deciding whether or not you will
contribute to some end, treats you as a means (a tool).
 Physical coercion treats someone’s person as a tool.
 Lying treats someone’s reason as a tool.
Duties:
 Arise from the obligation to further every human’s freedom of
choice.
 Assent: test for treating someone as a means.
 People cannot assent when they aren’t given a choice due to
coercion or deception.
 Knowledge of what is going on gives some power over the
proceedings.
Kant thinks the wrong reasons for protecting rights will lead to failure to
protect them in certain cases (80)
 consider slavery example
Moral Phil and Constitutional Law
 To say that an individual has a right is to say that a corresponding
obligation exists, either to provide for that right (positive duty) or
not to interfere with it (negative duty).
Questions regarding any right:
1. Who has the right?
2. To what is it a right, positive or negative?
3. Against whom it the right claimed? (Who has the corresponding
duty?)
 Constitutional rights are rights against the government.
o “state action” can be present in contexts that seem private
due to its power of enforcement
The first amendment is primarily concerned with “cognitive
communication” 83.
o Cognitive Communication: the attempt of people to convey
ideas and information to each other
o 1st amendment opposes the historical tendency to silence
controversial ideas.
 It imposes an almost absolute obligation to avoid
interference
Speech has been called a fundamental right.
Fundamental rights:
1. The right is politically essential to “ordered liberty” (Millian
justification)
o e.g. the right to petition
o valued for utilitarian reasons
o conventional
2. It is essential to individuals as human beings (Kantian
justification)
 The right to worship
 Respect-based
 natural
Strict Judicial Scrutiny (84):
Encumbering a fundamental right triggers a two pronged test:
1. It must accomplish a compelling state goal or interest
a. The prevention of serious, immediate, irreversible harm
to the nation (national security)
2. It must employ the least restrictive means possible
a. Censorship is considered the most intrusive action the
state can take.
QUESTION: What merits this strong protection for speech? What is morally
at stake?
 We need philosophical theory to answer these questions.
 Are all the demands for protection made by the press claims against
rights?
To violate a natural right is to degrade a person’s humanity (86).
Conventional rights are a social good.
 Attorney rights, etc
 Eliminating them would not be an affront to individual humanity.
(Dworkin quote 87)
Murphy sees speech as a fundamental right and additional protections for
the press are conventional.
Classification of rights:
1. Respect-based or natural (privacy and speech)
2. Politically essential (assembly and press)
3. Social utility-based (police carrying weapons)
(Don’t forget that these distinctions can be questioned or that some may
be rejected. Perhaps 3 isn’t a category of rights but a socially approved
privilege)
Humans are “communicative creatures” who value expressing ourselves
and forming life plans through dialog with others (88).
Free speech fosters the “marketplace of ideas” (Mill).
 There is a corresponding “right to listen”
 Additional protections for the press (against liability, etc) are
essential for democracy but also protect individual human rights.
Their utility has a telos (purpose) of protecting the rights of citizens.
When “balancing” rights, the courts should be an adversary of those who
threaten respect-based rights.
 Even rights-maximizing social policy cannot violate fundamental
rights
There is some controversy over what protections for the press will
protect or negate fundamental rights (e.g. defamation v. right “to know”)
“When all good or desirable things become a matter
of rights, then nothing is really a right any more”
(Murphy 93).