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PHILOSOPHY OF LAW EXAM REVIEW

PATERNALISM
Short answer
Each worth 1-2 marks
Overall 10-15 marks
Comprehensive definition
and example (different
example for each)
Types:
Narrow v Broad
Impure v Pure
Soft v Hard
Weak v Strong
Welfare v Moral
John Stuart Mill

OBEDIENCE TO LAW
One medium length
answer
Between 5-10 marks
Justification and
Argument for obligation
to obey the law

CASES
Choice of 2 out of 4
questions
Worth 13-18 marks each
Euthanasia
Decriminalization and
continued criminalization
Cases
Rodriguez v AG, Carter v
Canada
Recreational Marijuana
Decriminalization and
continued criminalization
Case
Malmo-Levine and Caine
Prostitution
Decriminalization and
continued criminalization
Case
Bedford v Canada
Hate Speech
Continued prohibition and
against prohibition
Case
R. v Keegstra

PATERNALISM
Narrow
Broad
Interference via law state paternalism Interference via interpersonal context
Example: New York City banning large
Example: Physician not letting patient
sodas
know crucial info about condition as it
Issue: lots of loopholes, arbitrary and
would interfere with healing process
capricious who sells, what is sold,
refills
Pure
Impure
Interference to benefit that person
Interference to benefit another person
Example: Making suicide a crime,
Example: smart serve licensing,
mandatory seatbelt use, mandatory
regulating advertising to discourage
helmet use, forced blood transfusions
smoking
for Jehovahs witnesses
Issue: may lead people to stop doing
the act entirely
Soft
Hard
Interference when not mentally
Interfere even when mentally
competent
competent
Example: subject to involuntary
Example: Forced blood transfusions for
hospitalization if likely to injure self
Jehovahs Witnesses
Weak
Strong
Interfere with means and accepting the Interfere with ends on the grounds they
ends by correcting a mistake of fact
may be mistaken of their end goal
Example: if a person is crossing a
Example: ban backcountry skiing
bridge which, unknown to them, is
End: Ski in unmaintained areas
unsafe and there is no time to warm
Causes risk and extensive resources to
them, you may turn them back without
safe in injured
infringement given their desire is not to
fall off
Means: crossing the bridge
End: to get to the other side
Welfare
Moral
Interfere to protect the emotional,
Interfere to protect moral well-being
physiological, and social well being
Example: Ban prostitution to protect
Example: Protect prostitutes from risk
prostitutes from exploitation
of violence and diseases
JSM and the Harm Principle
The exception for paternalism is that a person cannot sell themselves into slavery
as it prohibits future use

Obedience to Law
Dilemma: Whether or not it would be JUST for Socrates to attempt escape
Justification
of laws where any citizen refusing to abide by his agreement is unjust to laws
by
1. He refuses to obey the laws which bore him
2. He refuses to obey laws which reared him
3. He refuses to obey the laws to persuade them because they are unsound
of the social contract and consenting to the law
1. He never left Athens, aside for military service
2. He had children and reared them in the city
3. He rejected the possibility of exile
of the demands of justice where he lived his whole life under the laws and had
ample opportunity to change them SO
Why he should not escape
1. He will shamefully return injustice for injustice
2. He will have violated agreement and compacts with law
3. He would rather suffer injustice then he, himself, become unjust
Arguments
of Crito
1. Welfare of wife and children Crito can be trusted to look after them
2. He is innocent, they may change their minds so he should be alive for that
Rejected option of exile, he cannot run off as a lawbreaker and abandon
his post
of Consideration
1. Friends of Socrates will be punished as accomplices in escape
2. Another polis will view him as a destroyer of laws
3. Would make exiles of his children

Euthanasia
Arguments
Rodriguez: Every individual has the right to life, liberty and security (section
7) which includes the right to control the method, timing and circumstance of
death. Therefore, prohibiting terminally ill person from accessing physicianassisted suicide infringes on the right to equality (Sec. 15)
Carter: Autonomy/Self-Determination, request for assisted suicide
Principles and Theories:
1. Harm principle sphere of liberty and autonomy (ability to be selfgoverning), section 7 (life, liberty and security) should allow for the right to
die as the death is included In life
2. Paternalism: welfare (protection of emotional, physiological and social
well-being) v moral
3. Equality and Anti-discrimination: section 241 infringes on principles of
fundamental freedoms as the right to withdrawal life support is allowed but
assisted dying, which is similar in principle, is denied.
4. Quality of Life
Rooted in Utilitarianism (greatest good for greatest amount of people)
Autonomy
Consequentialist moral theory
Quality of life factors: capacity to experience pleasure and pain, rationality,
memories/relationships, make goals and plans to carry out.
Valuing judgements: some lives, when full of suffering, may not be worth
living (negative utility > positive utility)
Killing: killing is morally bad if life is valuable (justified if life is one of
excessive pain or low value)
5. Sanctity of Life
Respect for persons and the unique value of human life.
All human lives have value and mere existence is the ultimate value
6. Wrongness of Killing
Rooted in deontology: moral agents should act to fulfill duties
No consequentialist moral theory
Even if request assistance in dying, killing is wrong (wrong to kill the
innocent, excluded is capital punishment and war)
Case and Reasoning of Judges
RODRIGUEZ: Outcome committed suicide under assistance of physician
BCCA: Nature of illness NOT legal system which restricted freedom of choice (Sec.

241 does not discriminate on grounds of physical disability)


Dissent:
Provision which imposes senseless
suffering to those who will die shortly
does not conform to principles of
fundamental justice. Death is a part of
life itself.
Supreme Court held section 241 infringed on rights but to a reasonable limit
where blanket prohibition is necessary
Majority
Section 7: Security is right to make
choices concerning ones own body
AUTONOMY
Sanctity of life: allowing assisted
suicide undermines sanctity of life and
reform would seem as if state condoned
suicide
Protecting the vulnerable: in so that
they are not pressured into requesting
Section 15: prohibition discriminates
those who are unable to commit
suicide. Though justified given purpose
of section was to protect from other
wanting to control their life
Justified infringement: exceptions
create inequality and lead to slippery
slope of full acceptance, need
safeguards to prevent abuse
Section 12: prohibition constituted
cruel and unusual punishment given it
forces her to endure prolonged
suffering until death. Court argued
mere prohibition of action would not
constitute treatment.

Dissent ONE
Section 15: section 241 creates
inequality as disabled are unable to
commit suicide without assistance and
speculation of abuse to system does
not justify restrictions
Implication of changes in the law:
repeal of prohibition indicates that
government no longer believes
preservation of life overrides self
determination
Remedy: suspend declaration of
invalidity for one year for legal reform
Rodriguez (and other) granted
constitution exemption
Safeguards:
Constitutional exemption
Certified by physician and
psychiatrist
Daily examinations
Permission expires after 31 days

DISSENT TWO
Section 7: Criminal Code prohibits
autonomy and infringes on section 7 re:
security. Sue suffers because fear the
system may suffer abuse
Overbroad and Arbitrary: Rodriguez
scapegoated for others who might be
persuaded to commit suicide

Response to Majority: laws allow for


self-defence justify killing
Active v Passive distinction:
withdrawal of support v active
intervention. Distinction is arbitrary.
DISSENT THREE
Right to die with dignity: prtected
under section 7
CARTER: died of natural causes
Trial Court: provisions which prohibit assisted suicide breach the charter. Gloria,
who personally requested, free of coercion, not depressant with a material
disability that will never improve and a competent adult, satisfies conditions.
Risks can be avoided via safeguards
Granted Gloria constitutional exemption permitting assisted suicide
Federal Government: upholds constitution that protects human life.
Supreme Court: assisted suicide prohibition is overbroad for those enduring
intolerable suffering of irremediable medical condition. Infringement of charter is
not a reasonable limit.
Extends the right to refuse treatment to right to consenting to receive
treatment that will end life
Right to life is right not to die. Individuals can waive their right to life.
Quality of life; SCC concerns of autonomy and quality of life are liberty and
security
Sanctity of life; one of our fundamental values respecting the value of human life,
as well as encompassing liberty and security does not require that all human life
be preserved at all cost
Liberty: prohibition infringes on liberty the right to non-interference by the
state
Security: infringes because it restricts bodily integrity
Dignity and autonomy: crucial choices about ending ones lifelong values are
a critical matter in dignity and autonomy
Parallels to informed consent: removal of life sustaining equipment is allowed,
denying right to assisted suicide is hypocritical
Difference from Rodriguez:
SCC did not find fundamental justice justified infringement of life, liberty and

security (contrary to Majority in Rodriguez)


SCC echoes dissent in Rodriguez
SCC did not infringe under sec. 15 was found to be reasonable limit
Difference from Trial Court
SCC Sec. 15 did not find infringement
SCC Sec. 7 did not find it was grossly disproportionate but found it was overbroad
Changes since:
Acceptance of moral and ethical distinction between passive and active
euthanasia
Lack of halfway measure that protect the vulnerable leading to the need of a
blanket prohibition to avoid slippery slope.

Recreational Marijuana Use


Arguments
Decriminalization
Benefits: improved quality and safety,
reduce costs (drug control laws),
inclusion into society of the once
marginalized, increased revenue for
government
Principles and Theories
Decriminalization
Arguments and Critiques:
a) Lack of evidence that marijuana
is addictive
b) Lack of evidence that marijuana
is a gateway drug
c) Slippery slope fallacy that if it is
legalized, all other drugs will be
legalized
Welfare paternalism:
a) Society allows other harmful
products on the market. It is
hypocritical to single out

Continued Criminal Prohibition


Benefits: avoiding drug addiction and
organized crime

Continued Criminal Prohibition


Utility: benefits are worth the cost
Welfare Paternalism society must
protect the well-being
Pure and Soft Paternalism prohibit
kids and venerable from accessing to
protect themselves
Hard and Impure Paternalism society
must protect adults and non-vulnerable
to protect others
Moral Paternalism: drugs lad to

marijuana.
b) Imprisonment does not increase
wellbeing, it is degrading.
c) Imprisonment of those
vulnerable to the risk of drug
abuse are likely to be negatively
impacted by imprisonment.
d) If imprisonment only given to
adults/non-vulnerable, then they
are a means to the end of
protecting the vulnerable
Focus on harm reduction
Utility
a) Crime rates are likely to lower
given decriminalization is likely
to lower drug costs
b) Lack of evidence to support
marijuana is a cause of violence
(especially compared to alcohol)
c) Violence is increased when there
is no better way to settle
disputes (i.e. courts)
d) Imprisonment increases harm
e) Corruption of law enforcement
f) Abuse of civil liberties
Liberty
a) Anti-paternalism and autonomy
(human dignity/self-respect):
moral value of choice and
responsibility
b) Objection to moral paternalism: It
is arbitrary to single out
marijuana and not alcohol or
tobacco
c) Interference with liberty of selfregarding conduct is unjustified
d) Punishment to avoid self-harm is
immoral
Equality
a) Over-policing
b) Wasted time and money
c) Staggering racial bias

degradation and soul destruction


(compared to something like tobacco)

Alcohol, tobacco, narcotics v marijuana


a) Higher rate of disease than
marijuana
b) Higher rate of dependency than
marijuana
c) Higher rate of risk to others than
marijuana (driving under the
influence)
Connections to reasoning
ISSUE: criminalization of marijuana
ARGUMENT: Section 7: government must have a reasoned apprehension that
conduct to be criminally prohibited is objectively harmful before punishable
Principles of fundamental justices are that laws must not
a) arbitrarily deprive protected rights
b) be broader than necessary to accomplish purpose
c) be grossly disproportional to benefits gained
The state must legislate in accordance with the rule of law
Issues
Should possession be criminalized?
Should trafficking be criminalized?
Does the law have a valid criminal purpose?
Are the identified harms sufficient to justify criminalizing conduct?
HARMS: self is low, vulnerable is an issue for the schizophrenic, the pregnant and
the drug dependent. Other is similar to alcohol.
BC Court of Appeals
Majority
Dissent
Deprivation of liberty was in
Harm must be serious and substantial
accordance of harm principle, did not
Law on simple possession breached
violate section 7
section 7
Trial Court: Simple Possession
Majority
Consensus
Dissent
Rationality for prohibition Federal govt has power
Law is arbitrary and
a) State interest
to legislate for criminal
disproportionate as a
avoiding harm to
law
response to social
users and other
For purpose of protecting
problems
b) Public danger
safety, order, health and
operating a motor
vulnerable people
Choice of criminal law to
vehicle
control conduct to high
risk groups is out of
Harm
keeping with standards of
a) Harm to self v
justice
others is not of
controlling
Imprisonment reserved
importance nor
for conduct which poses
manageable
reasoned risk of harm to
standard
others and harm to
b) If harm is
identifiable individuals

significant, must
weigh nature and
extent
Punishment issue
a) Only in aggravated
circumstances will
imprisonment be a
fit sentence for the
vulnerable
b) Given no minimum
and wellestablished
sentencing
principles, it does
not violate
fundamental
justice in being
grossly
disproportionate
c) Not overbroad as
narrower position
would not be
effective

Malmo-Levine; Trafficking marijuana


Consensus
Section 15 argument
dismissed as it is not a
personal characteristic
Section 7 challenge also
failed

difficult to quantify
Harm to others
Impaired driving is
separate issue from
simple possession
Impact on healthcare too
remote
Response to majority
a) Who is more/less
likely to be
imprisoned not
members of
vulnerable groups,
those who do not
pose harm to
themselves or
other
b) State cannot
prevent general
population from
engaging in
conduct that is
harmless to them
on the basis that
other more
vulnerable persons
may harm
themselves
c) Government is
trying to prevent
low quantum of
harm to society at
high cost to
individuals
(INFRINGMENT OF
SECTION 1)

Prostitution
Philosophical Arguments
Clusters
1) Legal moralism: moral and social
2) Plain sex
3) Welfare Paternalist: physical and emotional
4) Market Freedom
5) Feminist Critiques: anti-contractarian, domination, alienation and
commodification to prevent harms to bodily invasion, male oppression,
alienation and commodification of sexuality, sacrifice to autonomy
6) Modified Feminist Critiques: anti-exploitation and stigmatization
focusing on justice, exploitation
Decriminalization
Continued Criminal Prohibition
Autonomy
Welfare Paternalism
Harm Principle Victimless crime
a) Harm to physical welfare (health)
b) Harm to emotion (relationships)
a) Consensual
Legal Moralism: prostitution is immoral
Liberty
and should be stigmatized
Paternalism
c) Moral harm (dignity, corruption of
b) Broad paternalism in favour of
character)
reform
d) Social harm (degradation of
Anti-Moralism
societal values and norms)
a) Plain sex argument
Autonomy Concerns
b) Stigma result of cultural taboos,
Human Rights
rejection of welfare paternalism
Equality and Feminist Theory
as it is created by stigma
c) Rejection of conventional
a) Anti-contractarian
b) Anti-domination + anti-alienation
morality
c) Anti-commodification
Equality and Feminist Theory
d) Harms
a) Anti-stigmatization: practice
a. Bodily invasion
heavily stigmatized and causes
b. Male domination,
detriment to women
oppression, subordination
b) Anti-exploitation: often do not
c. Alimentation and
enter by choice
commodification of
sexuality: alienates
sexuality, turning organs
into commodities
d. Sacrifice of autonomy:
allows for control of others
Kantian Feminist:
prostitution represents extremes of
inequality where prostitute is
objectified, commodified and exploited
(means to customers ends)
Global Human Trafficking

Criminal Underworld Empowerment


Connections and Reasoning of Judges
ISSUE: Decriminalization
POSITION:
1) Communication provision violates freedom of expression
2) Bawdy house, living off avails and communication violate section 7
3) Violation of liberty due to imprisonment
4) Violation of Security intersection of provisions contribute to violence
against prostitutes
a. Safe house allows for security but contrary to bawdy house
b. Working outside would be less dangerous with assistance of body
guard but contrary to living off avails
c. Screening clients would reduce harm but contrary to communicating
5) Not a reasonable limit under section 1
6) Flaws in law violence risk increased, threat to security v threat to liberty
a. interplay between provision where off the street is the goal of
communicating yet bawdy house foreclose on the ability to work
indoors
Principles of Fundamental Justice
1) Does not arbitrarily deprive of protected rights
2) Is not broader than necessary to accomplish purpose
3) Must not be grossly disproportionate
Federal Government
Harms are inherent in the relationship between client and prostitute, not the law
WELFARE PATERNALISM, PURE AND IMPURE: law seeks to limit negative effects for
prostitute and public
MORAL PATERNALISM: importance of societal values and human dignity
Trial Court
Challenged sections make many safety enhancing methods illegal
New interpretation: NEAR THE CORE OF EXPRESSION -- communication as being
ultimately directed at safely exchanging sexual services for payment
Laws materially contribute to harm for prostitute making key methods of harm
reduction illegal
Bawdy Houses overbroad (person convicted where no harm arises), grossly
disproportionate (infringed on security)
Living off the avails arbitrary (preventing exploitation actually increases
exploitation), overboard (catches non-exploitative relationships), grossly
disproportionate (infringed on security)
Communication grossly disproportionate (infringed on security)
Three provisions together: arbitrary (work against each other with no rational
expression
Ruling: provisions were unconstitutional and not a reasonable limit

Supreme Court
Unanimous decision
Contrary to fundamental justice
Rights infringement not a reasonable limit
Laws impose dangerous conditions
Bawdy house
Objective: combat nuisance in favour of public health and safety
Found grossly disproportionate as it infringes on safety
Living off the avails
Objective: target pimps and other exploitative relationships
Found overbroad as it targets other legitimate relationships that increase security
Communication
Objective: combat nuisance in favour of safety and health of public
Found grossly disproportionate as it infringes on safety
Infringements on section 7 were not reasonable limits

Hate Speech
Hate Speech
Arguments including definitions and defenses in existing law
Hate Speech
Expression aimed to cause extreme offence and vilify audience
Motivation is to incite fear and hatred
Premised on denial of equality for all
Propaganda
Contributes little to the aspirations of Canadians in either a quest for truth,
promotion of individual self-development or protection of democracy
Dissemination of ideas, information or rumour for the purpose of helping/injuring
an institution
Generally biased/misleading in nature
Characteristics of Propaganda
1) Promotion of self-serving ends
2) Purposes of gaining power, control, manipulation
3) Failure to respect autonomy
4) Indifference to the truth
5) Potential bias, deception
Principle and Theories
Decriminalization
Offense principle
It is good to criminally prohibit
something to prevent serious offense
(as oppose to injury or harm) to persons
and would likely be an effective means
to that end if enacted
Offense is an annoyance to someone.
The person experiences a disliked state
caused by wrongful conduct.
Evaluated by
1) Extent (intensity, magnitude,
durability)
2) Number of people offended
3) Reasonably avoidable

Criminalization
Harm principle
Direct physical and rights depriving
harm identifiable individuals
Does not provide sufficient justification
for legal protection against wrongful
conduct of others
Chilling Effect
there is the concern that it with stop
people from taking action out of fear of
consequences
Challenges to Efficacy (desired

result)
Rationales for freedom of
expression
1) Truth
2) Self-realization
3) Democracy

Equality
Multiculturalism
Critical Race Theory
Feminist Legal Theory
Efficacy (desired result)
Rationales for freedom of
expression
1) Truth propaganda spreading lies
2) Self-realization due to
psychological distress
3) Democracy
Connecting to Reasoning of Supreme Court Judges
Issue: Should Freedom of Expression be restricted in the case of hate speech
Offense
Criminal Code, Section 319:
(2) Everyone who, by communicating statements, other than in private
conversation, willfully promotes hatred against any identifiable group is guilty of
Defense
Criminal Code, Section 319:
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an
opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the
discussion of which was for the public benefit, and if on reasonable grounds
he believed them to be true; or
(d) If, in good faith, he intended to point out, for the purpose of removal,
matters producing or tending to produce feelings of hatred towards an
identifiable group in Canada.
Majority
Hate speech is harmful,
as well as offensive to the
targeted groups and the
society at large. Freedom
of speech is not the right
to vilify
Harm
Psychological distress
Increased acts of
discrimination
Lack of self-fulfillment
Discord between various

Consensus
Hate speech falls under
section 2 protection: right
is infringed by criminal
prohibition
(right is not absolute: all
important values must be
balanced)

Dissent
Focus on balancing and
proportionality
Interpretation of Mills
argument
Clash of views
valuable
Through clash of extreme
views, the truth and
democratic vision
remains vigorous and
alive

cultural groups
Argument of truth
In its extreme, we would
have to permit the
communication of all
expression and it would
be impossible to know
with certainty what is the
truth
Truth and Democracy
To portray misleading
statements as crucial to
truth and the betterment
of the political and social
milieu is misguided

Democracy
Participation rests on
notion that all are equal.
Though propaganda is
generally political and at
the heart of expression,
such expression can
undermine our
commitment to
democracy when used to
propagate ideas
Proportionality
Limiting right rationale is
that there is an
importance in protecting
certain groups
Fostering harmonious
social relationships
Excluding private
conversations
Hate speech charges
defendable if
1) Truth
2) Good faith on
religious matter
3) Public interest

Low value argument is


circular
If one statement is
dangerous and without
value, then it can be
concluded that no
common justifications for
protecting freedom of
expression are served by
it
Challenge in valuing
speech
What is of redeemable
value
Challenge to efficacy
claims
Noted in history that hate
propaganda laws did not
prevent the Nazi regime
Law may have
unintended effects i.e.:
making martyrs
Making martyrs
Promote the cause of
hate mongers by earning
extra media attention
(viewed as underdogs)
Overbreadth
Catches more expressive
conduct than justified in
promoting social harmony
and individual dignity
Subjectivity
Chilling effect
Given vagueness of
expression, there is the
concern that it with stop
people from taking action
out of fear of
consequences

4) Good faith attempt


at removal
Responses
Truth: hate speech false
and widely known to be
false
Self-Realization: zero-sum
game, uphold
hatemongers OR victims
and society should
protect victims
Democracy: competing
interpretations
Slippery slope
Allow certain types of
expression create
encroachments on
expression
Remedy: more than one
legislative tool

Shortcomings in the
law
Absence of required harm
Concern of circumstances
subject to state scrutiny:
virtually unlimited
Defense of truth may not
narrow scope
Criminal law arguable
unnecessary
Process of criminal law is
severest society can pose
Need for alternatives