Law and Society 2010

Revision Session

Anne Cheung
& Marcelo Thompson
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Have you started

your revision?
Topics covered

Law and Morality

Law and Technology
Euthanasia
Law and Religion
Law and Ethics Duty to
Save?
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I. Law and Morality

The Hart vs. Devlin Debate

The crux of the debate:

Should law intervene with our private behavior?

Why and why not? When?

What is the
purpose / role / message
of the law
E.g. Homosexuals, transsexuals, bisexuals

How does the Hart vs. Devlin Debate apply to

other social issues in the context of regulation
by the law?

Lord Devlins

The role of law:

Social cohesion
Moral cement
Protecting the youth
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Lord Devlins

No distinction between public

and private
Moral standard is not absolute
but dependent on social
sentiment at a given time
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Lord Devlins

Moral Standard to be ascertained by

asking the jury > common people
Public opinion should then be
enforced by criminal law

Harts

Personal liberty
Private acts
Sexual activities between consenting adults in
private

Harm principle (J. S. Mill)

None of laws business
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Have you grasped

the following?
Law reflects a hierarchy
Recognizes only certain categories of
persons

Not everyone is equal before law

E.g. we only recognize and protect the
interests of heterosexuals
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Have you grasped

the following?

Harm Principle
Does it work?

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Have you grasped

the following?
Is there any private act, since we are
living in a society?
Public policy and easy management
Reasons to justify the sacrifice of others
interests?
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Application
Transsexuals Right to
Marriage

Ming Pao,
Aug 9, 2010

SCMP,
Aug 11, 2010, C1

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Application
Compensated Dating
What is your opinion?
Age of participants; consent; aim

Is it just prostitution?
Whats wrong with selling ones
companionship, body, photos, images

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II. Law & Technology

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II. Law &

Technology
Finland, France, amongst other countries,
Recognize Access to the Internet as a Human Right
What is the Internet?

Is it the Internet of the Mainland?

Or it is the Internet of Finland?
It is a thing; an object; of our social, legal relationships;
Like all objects, Internet may be enacted in different ways;
And it is enacted in different dimensions (J.Law > topologies)
Euclidean (Geographical, Factual) -- cables,
architecture, geographical frontiers;

Networks (Conventional, Normative) -- standards,

protocols, law, politics;
Fluids -- technologies change; if they don't, when we
expect them too, they get broken in our conventions;
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Do Artefacts Have
Politics?
These dimensions interact, they exist together;
As they exist together, when we look at technologies from their
normative dimension, we can say that their architectures reflect
certain political properties; that technologies have politics;
In which cases, according to Langdon
Winner, can we say that technologies have
political properties?
It is also in their normative dimension that technologies will relate
to morality;

Can we situate the moral questions

raised by technologies within the Law
and Morality / Hart v. Devlin debate?
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Law and
Technological
Change
Also, when we approach technological artefacts from their fluid
dimension, we understand the problem of technological change;
What are the challenges / problems face by the law
because of technological change?
How does law respond to technological change?
What is the role of its different institutions?
Should Courts and Administrative Agencies play a wider role?
Does it make sense to expect the law to be neutral with regard
to technology? How does the debate on technological
neutrality relate to the debate on law and morality?

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Problems of
Technological
Change (1)
Do We Need New Law?
Can we solve problems by other means? e.g. by technological
design, by ethical adaptation
Is the Law Uncertain?
How to apply the law to the facts?
Ambiguity, Vagueness, Contestability;
Examples: e-signatures, software, in vitro, Internet; Questions:
One
in the swarm in BitTorrent = distributor?
Is the Law Over or Under-Inclusive?
Focuses on one goal, but includes more or less;
Examples: Privacy on Facebook(seen in class)
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Problems of
Technological
Change (2)
Obsolescence
Regulated conduct less important
Justification no longer exists
Law is no longer cost-effective (e.g. copyright)
Can we solve the problems with technological neutrality?
Difficulty of avoiding discrimination (e.g. ABS brakes)
highest level problem
Problem of the definition. What does technological
neutrality mean? (e.g. functions v. language, architecture)
Problem of political orientation (political neutrality)
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II. Euthanasia

What is Euthanasia?

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What is Euthanasia?
The different ways of
classification:
Voluntary vs. Non-voluntary
Active vs. Passive

Is the distinction between

active and passive
euthanasia a valid one?
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Challenge

What rights are

involved?

Right to die?
Dignity?
Privacy?
Autonomy?
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Challenge
Who should decide?

Patient?
Family?
Doctor?
Court?
Society?

Why?
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Authorities Pretty v UK

Right to private life art. 8 of ECHR

Why did Pretty fail to convince the court?
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Authorities
Pretty v. UK

Analysis

Does the claim fall within the protected scope of right

Is there interference by the authority?

Is such interference justified?

In accordance with the law/prescribed by law
Necessary
Stated legitimate purpose
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Our approach
Issue ?

Pressing social
need?

Scope of right
protected under
HKBOR?

Proportionality?

Infringed for a legitimate

purpose?
Yes

Right infringed?
No
End of story

Infringement
necessary in a
democratic
society?

Infringement in
accordance with law?
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Authorities
Purdy
Issue?
In accordance with the law

Sufficiently accessible
Precise
Consistently applied
Predictable
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Authorities
B v NHS Hospital Trust

Did the Court grant

Ms. B her wish?
Why?

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Dworkins Principles
1. Sanctity of life
The best way to respect life
value, maybe to die with
dignity

2. Autonomy and dignity of

individual
3. Best Interest of Patients

Which one should be paramount?

Why?
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III. Law and Religion

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 The law protects each

individuals freedom to
manifest his own religion

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What if
religious right
clashes with
other rights

Is it justifiable
to violate one
right for
protecting
another?

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 What is the role of law in regulating certain

harmful practices although revered by religion?
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Starting Point:
The Guarantees of the Law
Our rights are protected under:
BL Arts 32, 24, 40, 41, 39, 141
HK BORO Art 1, 22
ICCPR Art 18(1)

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Law and Religion

A question of public vs. private?
A question of confronting rights?
Fundamentality of religion?
Confusion of religions with morality?
Is it about rights? Or both?
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Starting Point:
The Guarantees of the Law
ICCPR Art 18(3)
Pressing social need
When may government may intervene?

Proportionality
To what extent?

Public morals or public safety ?

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Law and Religion

When should law intervene religious activities?
What is our expectation from the law as a society?
Should private conducts lay outside laws domain
i.e. between individuals or within a family?

Should conducts within a particular religious

community in HK still be regarded as private?
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Which rule
prevails?
Protection of
fundamental
rights under
international
law?

Constitutional
protection of
religious freedom?

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Which view
prevails?
International
standard?

Majority
view?

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Our approach
Issue ?

Pressing social
need?

Scope of right
protected under
HKBOR?

Proportionality?

Infringed for a legitimate

purpose?
Yes

Right infringed?
No
End of story

Infringement
necessary in a
democratic
society?

Infringement in
accordance with law?
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43

V. Law and Ethics

- Duty to Save?

What is Ethics?
A study of what is good and what
is a good life
Basic premise: If something bad
happensI should

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V. Law and Ethics

- Duty to Save?
Peter Singers
Basic premise:
Suffering and death from lack of food,
shelter and medical care are bad
If it is in your power to prevent such, without
sacrificng anything nearly as important, it is
wrong not to do so

Therefore, we should help

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Difficult Question

How much?
And how to apply to the legal context

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Difficult Question
Strong version
Give until we reach the level of marginal utility,
up to the point of sacrificing something of
comparable moral significance
Till it hurts, not giving the left-over that we
have

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Difficult Question

Moderate version
Till we need to sacrifice something morally
significant
> we need to make big change in our lives

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Legal Context
Shall we have Samaritan Law?

Active?
Should help those in life-threatening situation?
Passive?
At least not block the way of rescue?

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Legal Context
Feinbergs argument:
Decent Samaritan > Good or Splendid
Samaritan
Organ donation; ambulance rescue
Otherwise our omission causes harm to
others
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Exam is fun
Only if
you know how to
conquer it.

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Exam Format
Choose 3 questions out of 5

At least one from each part

Part A: set by Albert & Scott
Part B: set by Anne &
Marcelo

Time: 2.5 hours (including

15 minutes reading time)
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PLAN!
before you attempt
a question

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Introduction
What controversial topics does Q highlight?
What are the issues arising for discussion based
on the facts?
What is YOUR task / role?
Lawyer? Advisor?

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Points to Note
READ the instructions!!
Only write with BLACK or
BLUE ball pen
Practise writing
If your handwriting is illegible,
write on alternate lines
Only use abbreviation when
you have introduced the full
name e.g. ICCPR
Do not write in point form
unless you run out of time
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Structure
For each issue in the
problem, discuss:
Facts Legal Position based
on Facts
Traditional Defence /
Arguments
Problems / Controversies re:
application of standard
arguments.
In light of these difficulties,
your recommendations
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Conclusion
Advice?
Recommendation?

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Here we go:
Essay-type Question
Euthanasia is inherently
wrong because it
violates the nature and
dignity of human beings.
Please comment critically.
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Your Approach/Brainstorming
Understanding the question:
Define key terms
What is the argument asserting? The arguments in the
argument? The underlying assumptions?

Authority:
Did any legal scholars ever express opinions on those
views?
Any cases that cover the issue? Any ratio that you can
recall from those cases?

Your stance?
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Structure

Introduction
Your understanding of the quote
Brief statement of your own argument
Your argument should run through your
whole answer and tie your propositions
tightly together
Tackling the below key points
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Euthanasia is inherently wrong because

it violates the nature and dignity of
human beings.
Please comment critically.

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What is Euthanasia?
The term itself suggests good death
There may be different forms of euthanasia:
active; passive; voluntary; non-voluntary;
involuntary

In all those cases, the essence is

The killing of a person
Deliberate and intentional
Whom he or a third party considers his life is
hopeless
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Why is it wrong?
Whats wrong with it?
Wrongfulness:
killing of an innocent
person is wrong
an obligation not to kill

One ought not to do> we

are in the realm of moral
legal reasoning
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Nature and Dignity of

Human Beings?
Nature:
To survive; life itself is sacred

Dignity:
To seek life, to live;

Therefore euthanasia:

Leaves no room for miraculous recovery

Incline us to give up too easily
Against medical/society commitment to save life
Slippery slope may lead to serious and harmful fall
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Your Understanding of the Quote

Euthanasia amounts to a form of killing in
hopeless cases, often in hopeless ill cases
Though it may be voluntary and the person is
suffering, it is against human nature to seek
death; a denial to human dignity to treat a person
as better dead
From a macro perspective and in the long run, it
is harmful to society
Authority: Pretty; ratio
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Your Analysis
Inherently wrong: the ought standard
How do we decide what is morally right?
Is killing always wrong? Why is self defense
justified?
Prima facie not to cause injury/not to cause harm
(Hart/Mills principle)
Is euthanasia non injurious killing? E.g. mercy
killing for animals; different examples mentioned
by Peter Singer
Knowledge of the patient: to respect his wish>
autonomy
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Alternative View of Nature and Dignity

Nature and Dignity
To seek living out a full life

Endless and meaningless suffering is against human

dignity
Who should decide?
Dworkin; the case of B

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Alternative View of Nature and Dignity

If you agree with them
Killing a person is not necessarily always
wrong, wrong only if and because it
Is an injury of someone
And because it is contrary to the known
preferences of someone

What type of euthanasia may be wrong?

You need to address slippery slope argument
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Your conclusion?
You dont need to agree with the
proposition
There is no fixed answer
But your argument must be coherent

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Q. 5 (Exam 2009-10)
Issue
(a) whether the Us new policy may have
violated Kams freedom of religion?
Freedom of religion (HKBOR, art. )
3 Step approach

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Our approach
Issue ?

Pressing social
need?

Scope of right
protected under
HKBOR?

Proportionality?

Infringed for a legitimate

purpose?
Yes

Right infringed?
No
End of story

Infringement
necessary in a
democratic
society?

Infringement in
accordance with law?
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Q. 5 (Exam 2009-10)
3 Step approach
1. Does Kams concern fall within the
scope/engage the right of freedom of
religion? How?
2. Infringement
3. Justification

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Justification

Prescribed by law (Purdy)

Served a legitimate purpose
Necessity test
Can the University satisfy all the tests?
Any distinction between Kam and new
students?

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Q. 5 (Exam 2009-10)

Issue: Dear Students

(b) draft a letter
Structure:
Rationale behind the new rules
Exception on grounds of health and
freedom of religion

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Q. 5 (Exam 2009-10)
Rationale of Compulsory policy on blood
donation
Red Cross: situation has become urgent> life
saving
Singer: duty to save, why? Up to what point?
Feinberg: is this an act of omission? Is this
easy rescue?
What about Rands argument?
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Q. 5 (Exam 2009-10)
Grounds for Exemption
1. health;
2. religious belief;
3. only apply to new students but current
students are strongly encouraged**

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Common Problems in Past

Answers

Legal analysis missing??

Without application of law to facts
Mix up religious and cultural rights
Failed to mention Singer
Assume Devlin would support blooddonation

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 If you havent
started your
revision, be quick.
Good luck to your
exams!
Have a Nice
Holiday!!

Good bye!
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