17.

LAW and OBJECTIVITY

As bodily beings, we are biased towards objectivity on being able to see and sense bodily objects
Empiricist philosophy is based on this bias.
o
Empiricism was an important assumption in the premise and work of Jeremy Bentham, the main
founder of legal positivism
However, objectivity goes beyond empiricism. Rather, it is about openness to data, the willingness to
entertain all possible questions, to be free from biases that keep us from knowing the truth.
Thus, judgment about goods value judgments are objectively what we judge them to be, and not
meant to be merely subjective.

18. LAW and RATIONAL CHOICE

Three Senses of Rational Choice

1. Choice is rational when it is Fully Reasonable

Complies with all the requirements of practical reasonableness morally upright

2. Choice is rational in a Thinner sense

Practical intelligence is used, has rational appeal even if in some respects it is ultimately
motivated by feeling or emotion rather than reason
3. Choice is rational in a Special Sense

Technically or technologically right, by the standards of some art or technique for

assessing the most cost-effective way of attaining a relevant technical objective
Economists and game and decision theorists use Sense 3, Common sense uses Sense 2
Philosophers use Sense 1, arguing that Sense 2 and Sense 3 are not even rational
o
In Platos Republic, Socrates is asked to show how justice (and other virtues opposed to egoism
or self-centeredness) makes sense despite the fact that ones sense of justice and virtue puts him
at the mercy of unprincipled egoists and emotion-driven supporters [In short, how is justice
rational, when the sense of justice itself is oftentimes driven by feeling rather than reason?]
o
Egoism is self-defeating because it overthrows reason - one of the basic human goods is
friendship (which is impossible to attain for the egoist). Basic human goods provide one with the
reason he needs for intelligent choices
Essence of Friendship
o
A is interested in Bs well-being for Bs sake and vice versa
o
So A has a reason to be interested in his own (As) well-being for his own as well as for Bs sake,
and vice versa
o
Therefore the relationship of interest (will, choice, action, affection) is directed towards a
common good
o
There is a natural friendship between each and every person. Friendship and justice meet share
a common intelligibility
o
Sense 2 is irrational because (citing The Prisoners Dilemma as an example), to say that the
outcome in which you are set free, while the other is imprisoned for life is rationally preferable, is
not reasonable (i.e. not rational) at all.
o
Sense 3 is irrational because game theoretical or economist models of rational choice (which use
Sense 3) cannot possibly have a rational outcome when there is a concern for the common good
(only one player can win he has concern only for himself and not for the common good).
o
Thus, the natural law theory (which uses Sense 1) is the best theory for rational choice.

19. LAW and SEXUALITY

State law and government are morally limited cannot go beyond the maintenance of justice and peace
The role of state law is to improve citizens well-being, including good character
BUT the law should not punish sexually corrupt adults for acts that they do in private and with consent
Is there such a thing as ethics of sexuality?
Why are some choices to engage in sexual acts corrupt?
Why is sex (even if consensual) between an adult and a child considered child abuse, rather than an
agreeable form of play or of loving and educating?
In marriage, sex is a way for spouses to express their friendship, commitment, and openness to create
offspring. Even so, it is not truly marital unless there is a commitment to not perform the sexual act with
someone other than his/her own spouse. Otherwise, there is a lack of integrity sex becomes non-marital
- which makes one sexually corrupt.

Marriage is a basic form of human good

o
It is a relationship with two aspects: friendship and procreation
o
The right to have sex with each other is a mutual right, not to be confused with dominion (a
persons property relationship to a subpersonal thing) over the spouses body
o
Understanding the good of marriage [that it is an essential component of the common good]
means that one (whether married or unmarried) must DISAPPROVE of non-marital acts (they are
not morally reasonable).
o
It is the duty of parents to educate their children, to respect the good of marriage, to keep them
from being sexually corrupt (i.e. approving of non-marital sex), otherwise it would be a great
injustice to them.
o
In turn it is the duty of the State (through its government and laws) to assist the parents (e.g. by
outlawing pedophilia, distribution of pornography to children, etc.)
o
The intelligibility and worth of marriage should be preserved

Polygamy should be rejected since it goes against the principle of equality between
spouses

Same-sex marriage should be prohibited since they are entered by people who reject
the concept of exclusivity which is essential to marital fidelity and integrity
o
The centrality of the good of marriage to reasonable forms of life and community is
why the state and government assume jurisdiction over it, despite that jurisdiction
being supposedly limited to peace and justice.

20. PHILOSOPHY and TORT LAW

Principle of corrective justice

o
When a tort is committed, the equality between one person and another is disturbed; the
tortfeasor must compensate the other who has suffered loss or injury
o
BUT, are persons who are unequal (e.g. in wealth) to be treated as equals immediately prior to
the commission of the tort?
o
How is a tortious loss different from a culpable or non-tortious loss?
Compensation in tort law is based on moral natural law- principles that identify as wrongful all choices
meant to harm or deceive
A tort has both natural law elements and positive elements
o
Natural law elements

Basic aspects of human well-being interests

o
Positive elements

More or less conventional choices of ways of pursuing basic human goods and wellbeing
Tortious: every act intended precisely to cause harm to another
However, regardless of intention, there can be unintended side-effects unforeseen consequences
different from what was intended
Responsibility for the consequences of ones actions is different from responsibility for what one intends.
o
Thus tort is divided into the intentional and the negligent (Note: dolo and culpa).
Aspects of tort law (such as acceptable standard of care) are determined by the norms
The law of tort embodies an understanding of the common good of natural law.
It does not follow however that all the principles of tort law are in line with reasonableness (i.e. natural
law). The principle of equity should be incorporated more into tort law (e.g. taking into account the
parties means of compensating and bearing the loss when it comes to compensation).