Lecture One
I.
II.
III.
Meaning, nature and limits of ethics
Nature (a priori) and limits to ethics (ethical ambiguity)
The ethic of positive law
A. Positive law defined
B. Characteristics of positive law
1. command element
2. no requirement on type of ruler
3. habitual obedience to rules under classical p.l.
4. advancement of constructive goals
5. can be moral, immoral, or amoral
a. Rushing v. Powell
6. Possible weaknesses of positive law
C. Democratic, constitutional, empirically based positive
law: the ethic of our time
D. Why democratic, constitutional, empirically based
positive law is the ethic of our time
1. Lack of trust in society
a. Ford v. NCNB
2. Cultural pluralism
a. Gratz v. Bollinger (9th-Internet edition);
(8th ed.: In re Estate of Gardiner)
3. Trend toward legalizing all areas of
society
4. Massive non-compliance with positive law
and resort to the courts as the way to achieve justice
5. Failure to keep our promises
6. Greed
7. Lack of personal responsibility
8. Rewards for winning stimulate cheating
9. Tendency to resolve problems by passing
laws
IV. Jurisprudence: the study of other ethics (values)
influencing positive law
A. The ethic of justice
1. due process
2. equity courts
3. the advantage and disadvantages of justice ethic
4. Should the law be ‘moral’?
5. IML (Internal Morality of Law) by Prof. Lon
Fuller
a. there should be law (rules should exist)
b. the rules should be promulgated
c. the rules should be clear
d. the rules should be non-contradictory
e. the rules should be changed infrequently
f. there should be congruence between rules
and official conduct
g. the rules should not require the impossible
h. the rules should be non-retroactive
6. Natural law concept of John Rawls: original
position
7. Kant’s categorical imperative
8. Case example of natural law: Riggs v. Palmer
IV. The Ethic of Power
A. Definition: ability to do something (even the wrong
thing) and get away with it
B. Advantages of power ethic
C. Disadvantages of power ethic
D. Information as power: U.S. v. Simon
V.
The Ethic of Custom
A. Dfn.
B. Examples: law merchant
C. Example: Geary v. U.S. Steel Corp.
D. Advantages of custom
E. Disadvantages of custom
VI. The Ethic of Norms of conduct
A. Dfn: how most people/businesses conduct themselves
B. Philosopher: Ehrlich
C. Example: speed limit law
D. Strengths
E. Weaknesses
VII. The Ethic of civilization
A. Dfn: frustration of base instincts
B. Philosopher: Freud
C. Example: Regina v. Dudley & Stevens
D. Example: Title VII of Civil Rights Act of 1964
E. Strengths
F. Weaknesses
VIII. The Ethic of Reality
A. Dfn: what trial judges & juries do in fact irrespective
of positive law
B. Philosopher: Jerome Frank
C. Example: widows never lose when they sue GM
D. Strength
E. Weakness
IX. Ethic of utility
A. Dfn
B. Philosopher: Bentham
C. Example: In the Matter of Baby M
D. Act vs. rule utilitarianism