PHI 384 - Morality in Law and Punishment

PHI 384 - Morality in Law and Punishment - Christian...

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Christian Villaran Morality in Law and Punishment The law is built on the notion that punishment is justifiable. There are many theories as to why but one of the more substantial ideas, held by some retributionists, is that punishment annuls a crime by restoring moral harmony caused by crimes. Though it is a commonly held justification for punishment, there is danger in using morality as a factor in assigning punishment. It entails both deciding what moral standard to uphold as well as how to stay legally consistent. These are both very difficult decisions to make and would be difficult to implement realistically. Morality’s ambiguous role in the legal law brings questions to the core of the retributionist view on assigning punishment. If law is to have its foundations in morality, the first question must be whose morality. Is it the morality of the masses, or should it instead be the universal true morality (whatever that might mean)? Devlin would argue that the former can be the only morality used. Society is created by groups with similar morals and values (a shared moral culture), and a deviance or obstruction of these morals is also an obstruction to the moral fabric on which the society is based. (Devlin, 19) Because societies are built upon a common accepted morality, these obstructions can be punished as an act against the state, similar to the reasons we would punish one for subversive activity. (Devlin, 20) According to Devlin, the morality of the masses is what is applicable in law because it is what society was founded on. Essentially, if an act is deemed morally deviant by the societal masses then it should be punishable by law. (Devlin, 21)
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Christian Villaran Let us say for the sake of argument that Devlin is correct in saying that societies are built upon a shared moral culture. Even with this asserted there are problems in his argument that become apparent. First, while it tries to explain how morality can be applied to the law within a society, it misses the concept that a society is not an unchanging entity. Like culture itself, a society’s shared moral culture can and, for the most part, will change. If its moral culture is changing, a society itself must also be changing. Devlin fails to take this change into account, however, and labels society as constant. If we must believe that Devlin’s argument is true, we must
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PHI 384 - Morality in Law and Punishment - Christian...

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