Make sure to answer each question on page and half so the total are 3 pages !

Answer two of the following questions.  They are double-spaced type written and turned in through Canvas safe assign by Friday November 11 at 11:59.

Remember:  Make sure that each sentence is clear and grammatical.  Make sure that each paragraph has one main point and explains that point clearly.  Make sure your answers are logically structured. You need to justify your ideas, and you need to provide the strongest arguments you can. Your paper needs to have a strong command of both the central ideas and the peripheral arguments of the philosophers and legal cases under discussion and needs to have a convincing argument about the truth or falsity of the arguments under consideration. The following criteria will be used to grade your paper:

1. clarity — avoid wasted words and impassioned rhetoric.
2. organization — make sure you follow an outline.
3. cogency of argument and general persuasiveness — give reasons for your own views; and

1. Nature of Law: What are Ronald Dworkin’s arguments for morality as part of law, that is, how does he reject the separation between law and morality? Why do Legal Positivists defend that view that there is a fundamental separation between law and morality? How would each of those views analyze the Grudge Informer cases from Germany?
2. Explain how Ronald Dworkin and Robert Bork’s views differ concerning their understanding of constitutional interpretation. What does Bork say about the Griswold decision and what would he say about Obergefell v Hodges? What would Dworkin say given his view about constitutional interpretation about Griswold and Roe v Wade, and Obergefell v Hodges?
3. In his essay, “On Liberty,” Mill argues that an individual’s liberty can be rightfully constrained only in order to prevent his doing harm to others. What is Gerald Dworkin’s interpretation of Mill’s position on paternalism? Do you think that Mill would agree with him? Explain. What are hard cases for someone against all legal paternalism? Explain.

ANSWER

Nature of Law

Ronald Dworkin drew the line between law and moral principle. He believed that most times, people’s principles of morality are wrong that some crimes viewed as wrong could be acceptable. From his legal positivism philosophy, he expounded on issues ranging from race, abortion, equality, and euthanasia (Burton 1987). He had an absolute belief that the law should only take its authority from the basis of what society considers moral and virtuous. Researchers into his work explained that his philosophy relied heavily on the theory that there is always a simple right answer for every hard case. The relation Dworkin established between the law, and moral principles was a complex one. For instance, he observed that morality theories were inadequate to be wholly accountable as the rule of law (Burton 1987). However, he observes that judicial reasoning always applied moral judgment. In several ways, his philosophy was an attack on Hart’s philosophy, which was interesting to many critics because both were based on legal positivism. Dworkin, however, highlighted that Hart’s positivism was the wrong kind (Burton 1987). However, to many of his supporters, his theory was a development of Hart’s philosophy on the law’s nature.

One doctrine that is exclusively associated with legal positivism is the separation between law and morality. Law and morality are related but not joined, which is in contrast to many religious moralities that are often established as the legal framework. Positivist explains that the two have historically been estranged, a concept that exists to this day (Alexy 1989). Legal positivists have several explanations for the separation. Firstly, laws are enforceable by a governing body, while morality is a call of an institution or society. Breaking the law earns a hefty penalty from the governing body, such as prison time whole breaking a moral code has no legal consequence. Secondly, morality appeals to the internal affairs of an individual, while law focuses on the external parameters. For example, while the law can punish a person for theft, it cannot punish another for thinking about murder. Thirdly, there are so many ideals upheld by a morality that the law simply does not care. Laws also have a geographical limit, and while morality may have limits, it is not geographical.

The case of the grudge informer in Germany forced the question of whether Nazi laws were valid in post-war Germany. Considering the numerous atrocities committed by the Nazis, the separation of law and morality could never be so conspicuous as during the post-war Nazi prosecution (Dyzenhaus 2008). While there may be various connections between law and morality, something against the law has nothing to do with its morality. The Nazi oppression of the minority groups during the Hitler era might have been lawful and duty to the country and government but, at the same time, had no moral basis. This, therefore, presented the problem with the former German Nazi officers who their crimes were committed at a time when they were law.  In extent, this depicts the fickle nature of change when it comes to law and morality.

On Liberty

John Stuart Mill argued that as individuals, we are more aware of what is good for us than a state would ever (Husak 1981). Paternalism, in this case, refers to actions committed towards the promotion of good but occurs against another person’s will and consent. To many researchers, including Mill, paternalism blocked autonomy by disabling chance, opportunity, and, most importantly, liberty.  If a state engaged in paternalism, basically, what that seems like is throwing away food that belongs to another because you believe consuming the food would cause weight gain. Examples of such laws are the anti-drug legislation and compulsory seat belts, among many other laws that the law sets out, believing that it does in these individuals’ interests. However, Mill did not share this opinion with a counterargument that no one else has better intentions than a person to their own.

Gerald Dworkin also contributed to paternalism, where he set some conditions for the concept to be sensible. The conditions are protection against irrational propensities, which could include ignorance and incapacitation, both avoidable and unavoidable (Dworkin 1972). Secondly, the concept is allowed when the decisions in question are far-reaching, potentially dangerous, and irreversible (Dworkin 1972). Gerald’s contribution to the topic made sense of the idea of paternalism. By combining both Mill’s philosophy and his, we have the idea that only individuals know what is best for them unless they are mentally incapacitated, or the consequences cannot be left to chance. A good example is in science, in particular Genetic Biology. Experimentation in this field could result in the very end of the human race. Nuclear weaponry also falls under this category, and this is where governance has to come in and regulate or completely set rules against these kinds of actions.

I would agree with Mill, but I would modify his philosophy into what Gerald made it to be. Rational human beings are very aware of their needs and what they need to do to get them. But as in the examples of legal paternalism given above, the government has to come in and regulate because the effects could be catastrophic and irreversible, pushing the entire human race to the brink of extinction.

Works Cited

Alexy, R. (1989). On necessary relations between law and morality. Ratio Juris, 2(2), 167-183.

Burton, S. J. (1987). Ronald Dworkin and legal positivism. Iowa L. Rev., 73, 109.

Dworkin, G. (1972). Paternalism. The Monist, 64-84.

Dyzenhaus, D. (2008). The grudge informer case revisited. NYUL, Rev., 83, 1000.

Husak, D. N. (1981). Paternalism and autonomy. Philosophy & Public Affairs, 27-46.