Dworkinin his argument on semantic originalism maintains that the intendedmeaning and interpretation of the constitution was entirely abstractand not intended to being limited to the expectations of others. Asa matter of fact, as explained by Dworkin, the authors of theconstitution meant that each passing generation would at all coststrive to find the truth on things issues such as the punishments,which have the considerations of being genuinely cruel. In broadcontext, Dworkin elaborates semantic originalism to be the principleof looking at and interpreting the views of the true intent of theconstitution as predetermined as of the time of ratification (Adams,58).Consequently, Dworkin explanation looks at determining the meaning ofthe expressions, which are on determinable by the set procedures inArticle 5 of the Constitution.
Dworkinstrongly maintains that the constitution in its original meaning andinterpretation is open-ended. It requires the future generations toformulate the best understanding and meaning of phrases such as“unusual or cruel”. However, Scalia thinks that theopen-endedness has its own limits. For instance, he is veryparticular in his explanation on how the Bill of Rights had itsformulation to address backsliding possibilities solely. Contrary toDworkin’s explanation of semantic originalism, Scalia believes thatfuture generations might tend to have degenerate comprehension ofwhat entails cruelty and such the constitution is in place to helpthem from worsen the country (Adams,65).Dworkin understanding of semantic originalism stirs the need forengagement in moral philosophy in an effort of discovering the truthabout concerning the values talked about in the constitution inapplying them to new cases (Adams,72).The challenge presented in Dworkin’s argument was the futuregenerations figuring out what was truly cruel and what was legally ormorally right.
Itend to have an asymmetrical view and attitude going into the futureas opposed to the past. Additionally, I believe that our generationhas made the discovery of immorality on things that the previousgenerations never knew or appreciated. However, I desist theexplanation and the thought that coming generations might makesimilar discoveries as we have, namely, our generation often doesthings which are, in fact, ethically culpable. In this same contextand regard, I would like to believe that the authors of theconstitution and I were or are of like-mind: they did not take thepossibility of their practices ever being cruel seriously. Ipersonally put it, that if they did, none of the practices wouldexists. It is, therefore, implausible for one to think that whateverwas the meaning of “unusual or cruel” would result to suchconclusion.
Thebasic questions evidently seen in Hart and Honore’s Causation inthe law are: whether and the extent at which causation in the legalperspective tends to differ with causation outside legal perspectivesuch as everyday life and science, and the right legal proceduresused in deciding whether an action is responsible for causing anotherevent (Adams,89). The importance of Hart and Honore’s question is that in very manyoccasions responsibility in law usually depends on pointing out thata given state of affair or event or action resulted to loss toanother or causing harm (Adams,2012).Consequently, the main problem is whether the criteria utilized inmaking conclusive decisions on casual cases are objective andaccurately attuned to the task of mending the responsibility.
Itis important for one to understand that law most often than not hastight connections with the application of ideas, which are casual innature. Moreover, law has its concerns with the embodiment of thestatutes language and decisions to given situations (Adams,109).This usually involves the conception of the nature of the causeoutside the confines of law. Consequently, there have been arrays ofanswers both metaphysical and empirical that have emanated each withits own contemporary supporters. However, many have thought that theHart and Honore’s Causation in the law requires supportive evidenceand theory to show the functionality of casual notions in differentcontexts (Adams,112).Overlooking is perhaps one of the most fundamental functions, whichlooks at ways of specifying what might happen, and by what particularstages if and only if certain conditions persist. Explanatory andbackward looking are also plausible functions to Causation in Law.
Istrongly believe that the responsibility attribution on casualgrounds does not have its confines in law. For instance, historiansand moralists, tend to make their assessment on the agents’responsibilities on the basis of outcomes, social, political,military or economic of what they failed to do or did. Unlikeattorneys, such people have their concern coming from responsibilityfrom the good and the bad outcomes that come as well. I stronglythink that the question is of great importance as far as the legaltheory of causation is put to consideration. Law unlike other fieldsoften put emphasis on the harmful results of a given action. Manymodern day scholars including myself are of the opinion that the useof causation on whether responsibility attribution needs a differentcause of concept different from that used for explanation orprediction.
Theissue of legalizing prostitution and homosexuality was what let tothe famous Hart-Devlin debate. The report at the time claimed that itwas not in any way the duty of the law to have anything to do withmorality. Many at the time argued that homosexuality ought to facediscrimination based on privacy of morality and freedom of choice. Inhis argument, Devlin explained that law without the consideration ofmorality would destroy the liberty of conscience without doubt andwould in turn give way to tyranny. Devlin like many at the time,appealed to the notion of the societal moral fabric (Adams,134).He explained that there should be respect for criminal law in orderto reinforce the societal moral norms to prevent anarchy. Oneimportant point to take from Devlin’s argument was his explanationon how societies tend to disintegrate from within most of the time asopposed to external pressure.
Onthe other hand, Hart was quick to cautioning on the risks ofpopulism. Devlin explained on seeing no sense as to why theconvectional morality of just but a few members of the society oughtto be the justification from barring people to do what they want.Hart’s view springs from the theory that the views of most peopleoften have the coloring of prejudice and superstition. Moreover,Hart’s argument was a reiteration of the harm principle by Mill. Inhis argument, Hart showed on how different societies were able tosurvive changes in the simplest and fundamental moral views (Adams,206).It was evidently clear that Hart thought it was unheard-off tosuppose the occurrence of such a change makes it justifiable to claimthat one society has faced disintegration and in turn replaced byanother.
Ilike to that both Devlin and Hart were able to raise significantissues. Hart had a more individual and humanistic view while Devlin’sview was more or less pragmatic and had a lot of focus and attentionto majority rule. Over the years, there have been scholars who havedownplayed the Hart-Devlin debate. For instance, Dworkin suggestedthat people in the right states of mind ought to abandon the issuespresented in the Hart-Devlin debate and in turn shift their focus andconcentration on liberties. If a behavior constitutes basic libertysuch as sex, it ought not to be taken away, even if an individual hasa completely different way of doing it. I like to think that generalliberties should have restrictions only if they cause harm. However,it is unclear how one can tell the difference between general andbasic liberty.
Dworkinexpressed his thoughts on Devlin’s moral law theory where he basedhis arguments about homosexuality on individual emotional reactionsbut was quick to say that many would reject his perspective andreasoning. Moreover, from both legal scholars, a clear thought isthat emotional reactions are distinguishable from moral positions(Adams,2012).Dworkin explains on how moral positions should be dispassionate andunemotional but the reverse is usually true because emotionalreactions are useful in justifying moral positions, as it was thecase in Lawrence vs. Texas case (Adams,212).The United States Supreme Court made a landmark decision by strikingdown the sodomy law in the state of Texas, a decision that saw theinvalidation of the sodomy laws in 13 other states in the country.
Dworkinin retaliating Devlin’s thought explained that the law in mostinstances has its limits. Consequently, the Supreme Court’sdecision on the Lawrence vs. Texas case made a clear indication ofthe practical limits that the law can accommodate (Adams,242).Lawmakers in most instances might try to do something, which mightend up being misfired in varied ways. However, the million-dollarquestion is whether the law has principled limits. Consequently, byusing the Mill’s harm principle Dworkin makes a candid argument toDevlin’s explanations that were applicable in determining theSupreme Court’s decision (Adams,276). One of the positions was that the law should be eschew differentkinds of otherwise moral reasons that are valid such as homosexualitywhich at some point in time had the regards of being an act of sodomyby making the law seem somewhat neutral.
Enforcementof morality and social solidarity are important facets that Devlinpresented in his argument on legal moralism. He explains that it wasindeed possible for contemporary legal units such as the SupremeCourt extract thoughts and ideas from Republic and Laws from Plato orperhaps Ethics and Politics from Aristotle. The laws of the state arenot only in existence to merely secure men the opportunity in leadingmorally upright lives but see to it that they do it. The law as itdid in the Lawrence vs. Texas case should be applicable for thepromotion of moral virtues among the members of the society.
Adams,D. M. (2005). Philosophical problems in the law (4thed.). Wadsworth/ThomsonLearning.