Aims of law have been taken to mean that they represent the common good of the society. The legal system uses factors such as autonomy, harm, benefit and morality to formulate rules of conduct for the populace. These same factors however lay bare the difference between the two terms, aims of the law and common good of the society. The two have different philosophical underpinnings thus cannot be said to refer to the same issues. This paper would look at some specific laws and how they relate with the proper aims of law.
The aims of Law and common good
Aims of law and common good are two different elements; one seeks to have features that denote a particular political setup or society and the other pertains to exercise of authority (Murphy, 81). It therefore follows that the people in authority, to ensure conformity of their subjects have put legislation-law that is used to realize the common good of the political community. Murphy is of the view that achieving the common good is plausible but it should not be seen that enacting laws is the only avenue to achieve this (2006, 82). He was of the view that in placing conditions on the people they would be burdensome and as such the citizenry should be left to think on their own about conforming to the rules (Par. 2).
One of the main characteristic of law is that sanctions are provided for, each condition has a consequence of non attendance thus they do not follow the law out of their free will but are coerced into submission. (par. 2) It has been stated that use of law is not the best method to apply in such circumstances if optimum results are expected (par. 2). As such practicability of the same comes under scrutiny as fear may be a good motivator to align oneself to prescribed forms of conduct but that alone cannot sustain permanent obedience.
A country like China ordered families to have one child and if an extra child was acquired then penalties would accrue. Thus to reduce fertility and slow down population growth, the government provided access to contraceptives and artificially created the desire for small families (Aguirre, Hadley, 790). The artificial desire was propelled by media campaigns, incentives, social pressure, population education and the optional sterilization (Aguirre, Hadley, 790 par. 4). These forms of coercion though not express legislation to punish those who renegade from the messages arose from government policy directives on population control.
Applying the principle advanced by Mill (Murphy, 83), population increase does not directly harm other people, in this case, smaller families until the issue is compounded with economics and development agenda of the government. It 'directly diminishes another's well-being' thus the economic well being of other citizens (Murphy, 83). This however infringes on the autonomy of the individuals thus one can decide not to obey these directives-no one has the right to interfere with how one runs his or her life (Murphy, 87). Mill has been observed to be correct in depicting the law makers as 'closed-minded and ignorant with detrimental effects on the good of those living under the norms created' (Murphy, 88).
There is need to sustain the environment for the benefit of later generations hence laws on use. Different policy instruments regulate this area; the command and control policies and market based policies (Handy, 653). The former give polluters little flexibility through use of standards, regulations, prohibitions and public disclosure in achieving their goals while the latter relies on economic incentives i.e. taxes, subsidies, trade permits hence reduction and controlled pollution (Handy, 653).
Market based incentives, favored by economists, have been held to avoid infringement of human liberties (cited in Pearce, 1992) thus favored over command and control measures favored by environmentalists. This is not easily achieved due to transaction costs, political constraints and regulatory distortions (cited in Hahn and Stavins, 1992). Further environmentalists hold the view that monetary incentives are ploys to equate prices to the environment (Handy, 654).
In this case laws and regulations on the environment exist but the issue is on the methods prescribed, their practicability. Environmentalists argue the market based system negatives the gains made in maintaining the environment hence the command and control mechanisms should be utilized. This mirrors the sentiments of Murphy when he stated that one needs to identify the notion of harm to the interests (p.89) and the factors that may set back those interests. The economists view their problems in a monetary way while environmentalists have the environment at heart hence their divergent views on which model best suits environmental management.
With the foregoing I believe the stance adopted here is that the greater good i.e. economic returns and better environment were elected in place of an individual approach of attaining environmental balance envisioned by the environmentalists.
An important element of law making that is part and parcel of legislation is judge-made law or case law. Legal decisions emanating from judicial processes have been deemed to be law in equal breath as the drafted pieces. In relation to this, the American court formulated the rules that are to be followed by police officers when making arrests.
In Arizona v Gant the Supreme Court overturned the earlier police and seizure practices. The facts of the case were that the police arrested Grant for driving with a suspended license, locked him at the back of a patrol car, searched his car and found cocaine at the backseat of his car (Smith and Hester, 265). The departure from the norm-a vehicle search was possible for all lawful arrests advanced by New York v Belton (1981) (cited in Smith and Hester, 265), to now searching the vehicle only when the arrestee is unsecured and within reach of passenger compartment at time of search, when there is reasonable belief that evidence related to the crime of arrest might be found in the vehicle. At the time of the search, Grant was no longer within reach of the passenger compartment thus the search was declared unconstitutional. Note that issue of searching a person was first deliberated by the courts in United States v Robinson (1973) (cited in Smith and Hester, 267) where it was declared officially that the 'simple-to-apply bright-line rule' that has always been practiced. A glaring omission has been perpetuated down the years as the case law regarding searches of persons is straightforward but the law on searching 'the place around the arrestee is voluminous and inconsistent' (Smith and Hester, 268).
These conflicting government directives are confusing and cumbersome to apply hence the need for constant court interpretation when it seems that the police overstepped their 'undefined' boundaries. Dworkin had a theory on paternalistic restrictions (Murphy, 96) on conduct in that there are certain factors that are in motion for proper decisions to be made and in this case, the search of evidence at the location where the arrestee was found before that evidence is rendered unavailable by many factors. Further paternalistic interference is deduced when restrictions are put in place to prevent 'irrevocable or very costly choices from being made' (Murphy, 96). This is exhibited by the way the courts have been dealing with the decisions on the police searches. Each case was decided based on its peculiar circumstances but the doer was the same-police officers. Since the respondents or arrestee would look to enhance their constitutional rights and maybe file compensation suits against the government, then the prudent thing to do is avoid these further costs to the taxpayer by doing away with such matters.
Laws against animal cruelty were enacted in the USA during the 1960s after being ignored for a long time. Stories of cruel actions to animals were run in the print media which resulted in the Congress enacting animal welfare legislation. The first one was on Pepper, a dog that was picked from its farm and sold to a research lab where it was killed (Osinski 319) and second was on the appalling conditions available to animals in a dealer's farm (Osinski 320). The law now regulated handling of animals and even required handlers to be licensed and subject to checks by the Secretary of Agriculture (par. 2). Public awareness and public outcry were the main reasons for the Congress to finally enact these laws.
Mill's harm to others principle is inferred in these scenario-humans are not directly affected by the acts of those perpetrating the inhuman behavior on animals. However their bond and attachment to these animals are important for their enjoyment of life thus if harm is to come upon their object(s) of joy then harm is psychological (Murphy 83). A direct link between self-regarding i.e. the animal dealers/researchers and other regarding conduct i.e. animal lovers is evident where the animal handlers conduct has effect on the animal lovers thus prompting restrictions on such conduct (Murphy 85).
Assisted suicide is preferred by those who are terminally ill and are undergoing palliative care (Rizzo 34). This has aroused moral, ethical and legal views on such decisions. Assisted suicide is criminalized through law and common law in the USA, only Oregon legalized it (Rizzo 35). There are views that 'laws, judicial opinions, regulations and medical policies should have in mind the best interests of the patient by considering benefits and burdens of treatments and their impact on the overall quality of life' (Rizzo 36). This is weighed against continued existence, restoration of functioning and quality of extended life (Rizzo 37). Courts are of the view that best interests of the patient be applied when deciding on whether to sustain life or let it terminate (Rizzo 42).
This mirrors Mill's third argument on 'autonomy'; the right for one to reject laws that do not respect one's choices regarding one's life (Murphy 87). He adds that happiness of the members of the political setup denotes the concept of common good; this should be reflected in the legal and social policy. Thus in the case of terminally ill persons who opt to end their suffering with the help of the attending physician, they should be let free and choose as they wish as they would avoid 'prolonging dying'.
In conclusion the laws formulated have the basics of what they have to achieve but then the applicability becomes the next headache. If the draftsmen and judicial officers can reconcile the conducts to be regulated, the mechanisms of enforcement and the society's perception of the holistic process then the laws would thrive. In absence everyone would strive to assert their autonomous rights against the state.
Aguirre M. S., Hadley C. A. (2005) Hindered Growth: The Ideology And Implications Of Population Assistance. International Journal of Social Economics, 32: 9, p. 783-813. Retrieved Oct 10 2011 from Emerald database
Handy F. (2001) Advocacy By Environmental Nonprofit Organisations: An Optimal Strategy For Addressing Environmental Problems? International Journal of Social Economics, 28: 8, p.648-666. Retrieved Oct 10 2011 from Emerald database
Murphy M. (2006). Philosophy Of Law: The Fundamentals. NJ: Wiley-Blackwell.
Osinski J. E. (2011) The Animal Welfare Act and why it Matters to Librarians. Reference Services Review, 39:2, p.318-334. Retrieved Oct 15 2011 from Emerald database
Rizzo R. F. (2005) Major Issues Relating To End-Of-Life Care: Ethical, Legal And Medical From A Historical Perspective. International Journal of Social Economics, 32:1, p.34-59. Retrieved Oct 15 2011 from Emerald database
Smith M. R., Hester R. (2011) Arizona V. Gant And Searches Of Automobiles Incident To Arrest: Analysis And Recommendations For Policy And Practice. Policing: An International Journal of Police Strategies and Management, 34: 2, p.265-284.Retrieved Oct 10 2011 from Emerald database