Duty based theories, such as Immanuel Kant and W.

D Ross, would be slightly

conflicted, since they would not favor censorship. Overall these theories would
favor consideration of age-appropriateness. Kant believed correct action
should be based on universal maxims that do not take consequences into
account. His duties are expressed as categorical imperatives that are
applicable to everyone. Using Kants theory categorical imperatives could be
Adults have a duty to educate children and Adults ought to keep children
from harm. Kant also states people should be treated as an end, not as a
means of achieving goals. In this way the result of your actions is what gives the
imperatives their ethical morality. Both of these duties are concerned with the
end result of ensuring children grow into well-adjusted, independent adults.
Ross developed a theory that there are multiple self-evident duties that one
should follow (fidelity, reparation, justice, beneficence, self-improvement,
gratitude and non-injury). He did allow, depending on circumstances, for the
duties to be weighed against each other with the higher duty being supreme.
Rosss prima facie duties would agree with the above imperatives.
These imperatives could be used as justification for Where Did I Come
From? being considered age-inappropriate. It is listed variously as suggested for
ages 4-8 or 5-9, a young audience, although its reading level is grade eight. This
book, although attempting to educate children about important matters of
sexuality and reproduction, would violate the duty of keeping children from
harm. For the reasons discussed elsewhere it could give children inaccurate
and incomplete ideas. Ideally parents and children would discuss such a book
and areas of confusion could be clarified. However many parents are
embarrassed by the topics and may use a book as a substitute for discussion.
Using these imperatives, duty-based theories would support Heather Has Two
Mommies and Daddy's Roommate as being age-appropriate, since they
provide education about a topic at a level a young child could understand.
The child can learn without being given details beyond their comprehension
level. Both books explain alternative families at levels younger children can
understand, without details beyond their comprehension. Homosexuality may
be a topic a parent needs to explain and these books could help in an age
appropriate manner. Banning the books would cross the line to cross the line to
censorship based on the ideas, rather than a discussion about age
appropriateness based on how the subject is presented. Duty theories would
not support censorship or denying access to others who may need the
information, if it is age-appropriate.


W. D. Ross
Main article: W. D. Ross
W. D. Ross has been said to hold a position that is "representative of pluralistic deontology".
[14]
Ross
argued that utilitarianism was an inadequate moral theory because it failed to appropriately account for
primary moral concerns:

[Utilitarianism] seems to simplify unduly our relations to our fellows. It says, in effect, that the only
morally significant relation in which my neighbours stand to me is that of being possible beneficiaries
of my action. They do stand in this relation to me, and this relation is morally significant. But they
may also stand to me in the relation of promisee to promisor, of creditor to debtor, of wife to husband,
of fellow countryman to fellow countryman, and the like; and each of these relations is the foundation
of a...duty....
[15]


Ross's pluralism is also apparent in this quote. He argues that there are seven right making features of
moral action:
[16]

Duty of beneficence: A duty to help other people (increase pleasure, improve character)
Duty of non-maleficence: A duty to avoid harming other people.
Duty of justice: A duty to ensure people get what they deserve.
Duty of self-improvement: A duty to improve ourselves.
Duty of reparation: A duty to recompense someone if you have acted wrongly towards them.
Duty of gratitude: A duty to benefit people who have benefited us.
Duty of promise-keeping: A duty to act according to explicit and implicit promises, including the
implicit promise to tell the truth.
He called these prima facie duties, because when a person tries to decide how to act, each of these
duties need to be taken into consideration when deciding which duty should be acted upon. When more
than one of these "duties" applies to a person in some situation, only one should be acted upon. Assume,
for example, that I promise to watch a movie with a friend. I now have a prima facie duty to go with her to
watch the movie. However, on my way to pick my friend up, I see a car accident. The person who was
clearly in the wrong insists that it is the innocent person's fault. I now have a prima facie duty of justice to
wait for the police to arrive at the accident and report what I saw. What is my duty? Ross would probably
say that the duty of justice trumped the duty of promise-keeping in this instance. I can, after all, explain
the situation to my friend, and make it up to her somehow. In another situation, however, the duty of
promise-keeping may be more significant than the duty of justice.
Non-Aggression Principle
Main article: non-aggression principle
The non-aggression principle, also known as the non-aggression axiom and zero aggression principle, is
an ethical stance which states that any initiation of force is illicit and contrary to natural law. It is the basic
moral axiom of deontological libertarianism, most famously upheld byRobert Nozick, Murray Rothbard.
Rothbard described the axiom as such:

No one may threaten or commit violence ('aggress') against another man's person or property. Violence may
be employed only against the man who commits such violence; that is, only defensively against the
aggressive violence of another. In short, no violence may be employed against a non-aggressor. Here is the
fundamental rule from which can be deduced the entire corpus of libertarian theory.
[13]

The Divine Command Theory
Although not all Deontologists are religious, many believe in The 'Divine Command Theory'. 'The Divine
Command Theory' is a cluster of related theories that state that an action is right if God has decreed that
it is right.
[7]
William of Ockham, Ren Descartes and eighteenth-century Calvinists all accepted versions
of this moral theory, according to Ralph Cudworth, as they all held that moral obligations arise from God's
commands.
[8]
The Divine Command Theory is a form of deontology because, according to it, the rightness
of any action depends upon that action being performed because it is a duty, not because of any good
consequences arising from that action. If God commands people not to work on Sabbath, then people act
rightly if they do not work on Sabbath because God has commanded that they do not do so. If they do not
work on Sabbath because they are lazy, then their action is not truly speaking "right", even though the
actual physical action performed is the same. If God commands not to covet a neighbour's goods, this
theory holds that it would be immoral to do so, even if coveting provides the beneficial outcome of a drive
to succeed or do well.

Kantian ethics
Immanuel Kant's theory of ethics is considered deontological for several different reasons.
[9][10]
First, Kant
argues that to act in the morally right way, people must act from duty (deon).
[11]
Second, Kant argued that
it was not the consequences of actions that make them right or wrong but the motives of the person who
carries out the action.
Kant's argument that to act in the morally right way, one must act from duty, begins with an argument that
the highest good must be both good in itself, and good without qualification.
[12]
Something is "good in
itself" when it is intrinsically good, and "good without qualification", when the addition of that thing never
makes a situation ethically worse. Kant then argues that those things that are usually thought to be good,
such as intelligence, perseverance and pleasure, fail to be either intrinsically good or good without
qualification. Pleasure, for example, appears to not be good without qualification, because when people
take pleasure in watching someone suffering, this seems to make the situation ethically worse. He
concludes that there is only one thing that is truly good:

Nothing in the worldindeed nothing even beyond the worldcan possibly be conceived which
could be called good without qualification except a good will.
[12]


Kant then argues that the consequences of an act of willing cannot be used to determine that the person
has a good will; good consequences could arise by accident from an action that was motivated by a
desire to cause harm to an innocent person, and bad consequences could arise from an action that was
well-motivated. Instead, he claims, a person has a good will when he or she 'acts out of respect for the
moral law'.
[12]
People 'act out of respect for the moral law' when they act in some way because they have
a duty to do so. So, the only thing that is truly good in itself is a good will, and a good will is only good
when the willer chooses to do something because it is that person's duty. Thus, according to Kant,
goodness depends on rightness.
Kant's three significant formulations of the categorical imperative are:
Act only according to that maxim by which you can also will that it would become a universal law.
Act in such a way that you always treat humanity, whether in your own person or in the person of any
other, never simply as a means, but always at the same time as an end.
Act as though you were, through your maxims, a law-making member of a kingdom of ends.


Delegation of Power and its Limitations

Introduction:
According to the traditional theory, the function of the executive is to administer the law
enacted by the legislature, and in the ideal state the legislative powers must be exercised
exclusively by the legislature who are directly responsible to the electorate. Apart from
the pure administrative function executive also performs legislative and the judicial
function also. In England theoretically it is only parliament, which can make laws. Even
in the United States of America where the doctrine of the delegated legislation has not
been accepted in principal, in practice the legislature has entrusted legislative powers to
the executive. Administrative legislation met with a rapid growth after World War II and
in India during 1973 to 1977.
Delegation of powers meaning:
Delegation of powers means those powers, which are given by the higher authorities to
the lower authorities to make certain laws, i.e., powers given by the legislature to
administration to enact laws to perform administration functions. The law legislate by the
administration with the powers given by the legislature is called delegated legislation. Or
we can say that when an instrument of a legislative nature is made by an authority in
exercise of power delegated or conferred by the legislature is called subordinate
legislation or delegated legislation.
History of Delegation of Powers:
a. Pre constitutional Position:
The history of delegation of powers can be traced from the charter stage of 1833
when the East India Company was regaining political influence in India. The of
1833 vested the legislative powers exclusively in Governor General in
council, which was an executive body. He was empowered to make laws and
regulations for repealing, amending or altering any laws or regulations, which
were in force for all persons irrespective of their nationality.
In 1935 the Government of India Ac, 1935 was passed which contained an
intensive scheme of delegation. The report of the committee on ministers powers
was submitted and approved which fully established the case for delegation of
powers and delegation of legislation was regarded as inevitable in India.
b. Present Position:
Though, our constitution was based on the principal of separation of powers, a
complete separation of powers was not possible hence it maintained the sanctity
of the doctrine in the modern sense. The Indian Constitution does not prohibit the
delegation of powers. On the other hand there are several provisions where the
executive has been granted the legislative powers. For example the legislative
powers of the president under the Indian Constitution are conspicuous. Under
Article 123 the president has the power to promulgate the ordinances and
unrestricted power to frame regulations for peace progress and good government
of the union territory under Article 240. The Supreme Court of India has also
upheld the delegation of legislative powers by the legislative to the legislative to
the executive in the case of Raj Narayan Singh v. Chairman Patna Administration
Committee.
Growth of Delegation of Power and its Reasons:
Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic state. The traditional theory of laissez faire has been given up by
every state and the old police state has now become a welfare state. Because of this
radical change in the philosophy as to role to be played by the state, their functions have
increase. Consequently, delegated legislation has become essential and inevitable.
Some of the reasons of the growth of the Delegation of Powers are as follows:
1. Pressure upon Parliamentary Time:
As a result of the expanding horizons of the state activity, the bulk of legislation is
so great that it is not possible for the legislation to devote sufficient time to
discuss all the matters in detail. Hence there is need for a delegation of power.


2. Technicality:
Sometimes, the subject matter on which legislation is required is so technical in
nature that the legislator, being himself a common man, cannot be expected to
appreciate and legislate on the same, and the assistance of experts may be
required. Hence this lead to the growth of delegation of power.
3. Flexibility:
At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen
situations demanding exigent action. Hence there is a need for flexibility which
leads to the growth of delegation of power.
4. Experiment:
The practice of delegated legislation enables the executive to experiment. The
method permits rapid utilization of experience and implementation of necessary
changes.
5. Emergency:
In the time of emergency, quick action is required to be taken. The legislative
process is not equipped to provide for urgent solution to meet the situation. Hence
there is need for delegation of power.
Delegation of Powers under the Indian Constitution:
The Legislature is quite competent to delegate to other authorities. To frame the rules to
carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N. Wanchoo, the
then justice of the Honble Supreme Court dealt in detail the powers of delegated
legislation under the Article 312 of Indian Constitution. He observed:
there is nothing in the words of Article 312 which takes away the usual power of
delegation, which ordinarily resides in the legislature. The words Parliament may by law
provide in Article 312 should not be read to mean that there is no scope for delegation in
law made under Article 312.
In the England, the parliament being supreme can delegated any amount of powers
because ther is no restriction. On the other hand in America, like India, the Congress does
nit possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v.
Rayans, the supreme court of the United States had held that the Congress can delegate
legislative powers to the Executive subject to the condition that it lays down the policies
and establishes standards while leaving to the administrative authorities the making of
subordinate rules within the prescribed limits.


Control Mechanism of Delegated Legislation in India:
A. Parliamentry Control
Every delegate is subject to the authority and control of the principal and the
exercise of delegated power can always be directed, corrected or cancelled by the
principal. Hence parliament control over delegated legislation should be living
continuity as a constitutional necessity. The fact is that due to the broad
delegation of legislative powers and the generalized standard control also being
broad, the judicial control has shrunk, raising the desirability and the necessity of
parliamentary control.
In the USA the control of congress over delegated legislation is highly limited
because neither is the technique of laying extensively used nor is there any
congressional committee to scrutinize it.
In England due the concept of parliamentary sovereignty the control exercised
over delegated legislation is very broad and effective.
In India the parliamentary control of delegated legislation is implicit as a normal
constitutional function because the executive is responsible to the parliament.

B. Procedural Control
Parliamentry control over administrative rule is admittedly weak because the
legislaters are sometimes innocent of legal skills. A constant search therefore is
on for an alternative mechanism which besides providing an effective vigil over
administrative rule making can guarantee effective people participation for netter
social communication, acceptance and effectively of the rules.
Procedural control mechanism has the potential to met the above noted
requirements for allowing specific audit of rules by those for whose consumption
they are made. Procedural control mechanism operates in three components:
1. Drafting
2. Antenatal publicity
3. Consultation
4. Postnatal publicity
C. Judicial Control
In India the judicial review of administrative rule making is subject to the normal
rules governing the review of administration action. This judicial review of
administrative rule making cannot be foreclosed in any manner by the enabling
act. In State of Kerala v. K.M.C. Abdullah & Co. the S.C. held that the validity of
such a phrase as shall not be called in question in any court in the enabling act.
In the same manner in G.O.C. v. Subash Chandra Yadav the S.C. held that an act
providing that rules made there under on publication in official gazette would be
as if enacted in the act. Cannot take away judicial review. Grounds of invalidity
may arise on the following counts:
1. That the Enabling Act is Ultra-vires the Constitution
2. The Administration Legislation is ultra-vires the Constitution
3. That the Administrative Legislation is ultra-vires the Enabling Act
Limitations to Delegated Legislation:
It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit
beyond which delegation may not go. The limit is that essential powers of
legislation cannot be delegated. The essential legislative power consists of the
determination or choice of the legislative policy and of formally enacting that policy into
a binding rule of conduct. The legislature, therefore, may not delegate its function of
laying down legislative policy to an outside authority in respect of a measure and its
formulation as a rule of conduct. So long as a policy is laid down and a standard or limit
established by statue no unconstitutional delegation of legislative power is involved in
leaving to the executive the making of subordinate rules within the prescribed limits and
the determination of facts to which the legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition of
delegation of law making powers rests. There is no specific provision in the constitution
prohibiting the delegation. The Constitution of U.S.A embodies the doctrine of separation
of powers, which prohibits the executive being given law making powers.
In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given
plenary powers to legislate on a particular subject there must also be an implied power to
make laws incidental to the exercise on such power. It exercise of a power is included in
the grant of power.
In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided another
justification for delegated legislation that the Constitution confers a power and imposes a
duty on the legislature to make laws, but in view of the multifarious activities of a
welfare State, it cannot presumably work out all the details to suit varying aspects of a
complex situation. The legislature must necessarily delegate the working out of details to
the executive or any other agency.


Judicial activism
From Wikipedia, the free encyclopedia
Judicial activism describes judicial ruling suspected of being based on personal or political considerations
rather than on existing law. It is sometimes used as an antonym of judicial restraint.
[1]:1
The definition of judicial
activism, and which specific decisions are activist, is a controversial political issue, particularly in the United
States. The question of judicial activism is closely related to constitutional interpretation, statutory construction,
and separation of powers.

Origins of the term
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article
titled "The Supreme Court: 1947."
[2]


Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained
the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy,
and Rutledge as the "Judicial Activists" and Justices Frankfurter, Jackson, and Burton as the
"Champions of Self Restraint." Justice Reed and Chief Justice Vinsoncomprised a middle group.

Keenan D. Kmiec
[3]

From the very beginning, the phrase was controversial. An article by Craig Green, An Intellectual History
of Judicial Activism, is highly critical of Schlesinger's use of the term. "Schlesingers original introduction
of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also
declined to say whether activism is good or bad."
[4]

[edit]Definitions
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby
judges allow their personal views about public policy, among other factors, to guide their decisions."
[5]

Political science professor Bradley Canon has posited six dimensions along which judge courts may be
perceived as activist:
[6]:239
majoritarianism, interpretive stability, interpretive fidelity, substance/democratic
process, specificity of policy, and availability of an alternate policymaker. David Strauss has argued that
judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as
unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the
constitution.
[7]

Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical
shorthand. Kermit Roosevelt IIIstated that "in practice 'activist' turns out to be little more than a rhetorically
charged shorthand for decision the speaker disagrees with";
[8]:2-3
likewise, former Solicitor
General under George W. Bush, Theodore Olson stated in an interview on Fox News Sunday, in regards
to a case for same-sex marriage he had successfully litigated for, that "most people use the term "judicial
activism" to explain decisions that they don't like."
[9]:2
Others such as current Supreme Court
Justice Anthony Kennedy have scolded this approach as unhelpful because it relies on subjective
judgments.
[10][11]

[edit]Debate
Detractors of judicial activism charge that it usurps the power of the elected branches of government or
appointed agencies, damaging the rule of law and democracy.
[12]
Defenders of judicial activism say that in
many cases it is a legitimate form of judicial review, and that the interpretation of the law must change
with changing times.
A third view is that so-called "objective" interpretation of the law does not exist. According to law professor
Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and
jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes
make choices."
[13]

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and
should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e. there
should be an increase in the powers of a branch of government which is not directly subject to the
electorate, so that the majority cannot dominate or oppress any particular minority through its elective
powers.
[14]
Moreover, they argue that the judiciary strikes down both elected and unelected official action,
that in some instances acts of legislative bodies reflect the view the transient majority may have had at
the moment of passage and not necessarily the view the same legislative body may have at the time the
legislation is struck down, that the judges that are appointed are usually appointed by previously elected
executive officials so that their philosophy should reflect that of those who nominated them, that an
independent judiciary is a great asset to civil society since special interests are unable to dictate their
version of constitutional interpretation with threat of stopping political donations.