My plan in this paper is to outline how the different mode of expression of consent is insufficient in explaining our obligation to obey the state’s law by interpreting and evaluating the defects of the types of consent. I shall aim to show that actual consent theories cannot be made to work, because there are no common grounds of actual consent to obey the law. Although most people assume that their obligation to obey the states laws is explained by a practical basis of their consent, I say, if people morally agree with the laws of the state they obey it. Consent theories do not necessarily explain the motive ... ... middle of paper ... ... voter’s intention as expressed by their vote makes their vote meaningless as a form of consent. It could also be that false promises were made to citizens by participants of the election and so these “potential consenter” were misled.
The concept is irrelevant to what they are doing. The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, neither the Nuremberg Tribunal nor Carl Friedrich got to the most important reason why administrators must have discretion. Friedrich got close. It helps to know that he also served as translator for the political writings of Immanuel Kant. The view advocated by Finer violates Kant’s Categorical Imperative, by treating government employees as means but not ends -- that is, by denying them voice in critical decisions in their own work -- thus it is immoral.
Buchanan stated that an authority has political legitimacy when “morally justified in wielding political power,” whilst political authority exists only where “in addition to possessing political legitimacy it has the right to be obeyed by those who are within the scope of its rules.” In Rawl’s view, legitimacy allows political powers to wield power through creating a pro tanto moral duty to obey it. Without legitimacy, the authority would not be justified in exercising power and t... ... middle of paper ... ...nse. In cases where following the directive would be counterproductive, the issuance of the directive as a pre-emptive reason to act would prevent us from carrying out the correct action. For example, if a car carrying a grievously injured person was stuck in traffic, would it be acceptable to use an empty lane designated solely for buses in order to arrive at the hospital faster? Following the instrumentalist theory, the directive that only buses could use the empty lane would be a pre-emptive reason not to use it, outweighing the reasons that directly applied to the situation.
However, true liberty cannot arise from a contract, as man cannot be “forced to be free” (150). There are two fundamental flaws with contractarianism: it is not practical and it ignores human nature, and even if were possible to establish a true contract-based society, the citi... ... middle of paper ... ...tract theory does raise additional questions. Rousseau envisioned a society in which every voice was heard. A solution to this impracticality is the idea of representation—something which Locke advocated for in The Second Treatise. The idea makes sense; have one person represent a group of people to improve functionality.
Communitarians cannot accept liberal theory. It fails to pay mind to the essence of what makes human beings function as social creatures. And while it continues to stray from its beginnings it can no longer satisfy what is necessary for an acceptable political theory. Communitarians view this distance from the original theory their main objection to liberal theory. Instead an ideal communitarian theory would involve “a more contextual and community-sensitive approach” (209).
Yet he also says that the originalism readings will date the constitution and make it less relevant. This is all in the same vein as calling for an institution that protects the rights the people and limits the majoritarian aspects of democracy, so in an essence, creating a working constitutional democracy. I feel that the answer that Dworkin is searching for is the judicial branch. Waldron feels the same, noting the differences in Dworkin’s essay as well. Dworkin says that “legislature is not the safest vessel for protecting the rights of policy unpopular groups,” and this is where I can understand some point that he trying to make, because legislature is not the safest vessel for protecting minority groups, the judicial branch is.
LIBERTY AND PATERNALISM John Stuart Mill and Gerald Dworkin have distinctly opposing views on legal paternalism in that Mill is adamantly against any form of paternalism, whereas Dworkin believes that there do exist circumstances in which paternalism is justified. Both agree that paternalism is justified when the well being of another person is violated or put at risk. Mill takes on a utilitarian argument, explaining that allowing an individual to exercise his freedom of free choice is more beneficial to society than deciding for him what is in his best interests. Dworkin, on the other hand, feels that certain cases require the intervention of either society as a whole or its individual members. He breaks Mill’s argument down into two distinct types, one based on utilitarianism and one based on the absolute value of free choice.
In political philosophy, autonomy is a refusal to be ruled, and authority of the state is the right to rule, there is a conflict. If a man fulfills his obligation to autonomy, then he will go against the claim by the state to have authority over him. Wolf states, “He will deny that he has a duty to obey the laws of the state simply because they are the laws.” This is the major conflict with political authority. Some philosophers believe that a solution to this problem is the concept of democracy. This argument says that if men rule themselves then they would be both the law givers and followers, combining autonomy with authority.
However it's not clear where the line should be drawn or how a consensus on the issue could be reached. John Stuart Mill put forth an idea, commonly known as the 'harm principle', in which he argued that the government may only legitimately interfere in our actions to prevent harm, or the threat of harm, to others. For Mill it wasn't enough to simply do something that people didn't like rather, one has to actually cause another harm. Mill's argument seems designed to protect our individual freedoms against government paternalism, through which our ability to express ourselves may be restricted under the pretence that we are being protected from ourselves. For Mill the only time we must justify our actions to society, or the government, are when they concern others and most importantly, bring them harm.
According to Mill, liberty should not be enforced by law as any imposing would lead to breach of individual liberty. On the contrary, Devlin claimed that if society has the right to make judgments it can also use the law to enforce it. He said that society does have a right to use the law to preserve morality in order to safeguarding social morals. Further Devlin said that the law is not looking for true belief but what is commonly believed by individuals in a civil society as a whole. He said that the judgment of the “right minded person” will prevail and immorality would be something which the those people will consider immoral.