Are laws based on morality? - Page 2 - Politics Forum.org | PoFo

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Crime and prevention thereof. Loopholes, grey areas and the letter of the law.
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#14538212
the simple fact the agent is different requires different solutions


Yes, and our laws increasingly deny this through mandatory sentencing as well as precedent.
#14549079
Laws are essentially societal norms backed by the state authorities. They are a product of the socio-political climate in which they were written, and yet function to reaffirm the same climate. Laws are usually not "objectively" moral, but they are almost always defensible from some sort of moral perspective. This moral perspective hinges on the ruling elite at the time of the law's conception.

Dystopian Darkness wrote:You are correct, I am from a legal/civil system. The rule of law is the written law produced and created by the parliament - But our judges to have to interpret the law because some concepts or formulations are ambiguous and apply to a variety of real life cases; the only thing a judge cannot legally do is to completely violate the grammatical meaning of the law (example - If the law says "thou shall not murder" a judge can never reach the conclusion that murdering is acceptable). I agree that judges probably have an ideological leaning and some base themselves on morality - For instance, some judges apply heavier sentences (within the legal limits) because they believe retribution and punishment is more important than rehabilitation. But how are those rules amoral?

In certain dynamic legal systems the judges may actually violate even the semantic meaning of a law, provided the law is outdated and unacceptable to the present standards. The legislators are often unaware of the existence of certain laws until they are challenged before a court. In that case the judicial may actually assume the role as legislator and disregard the law itself, formulating a legal rule of its own. This is of course a rare occurrence, but the alternative might be that a lawyer might find an archaic law from the early 20th century to support a claim that's entirely unreasonable in regards to today's moral standards.
kobe wrote:Is that a law because of the system of morality, or because the people who made the amendment believed that two terms were more conducive to the structural benefit of the system?

This law has been implemented in order to avoid tyranny/dictatorship, and to make governmental transitions swift and painless. These are practical customs, but they also have a moral implication, because society is basically affirming the position that tyranny is unwelcome.
Dystopian Darkness wrote: I'm a firm believer that in criminal law there is no such thing as an equal crime as long as the person committing it is not the same (and even if he/she is, the circumstances will never be the same)

Precedent is not written in stone though, and the judge will have to identify/define the decisive legal argument used in former rulings in order to make it applicable in any given case. Precedent is never supposed to be the only compelling weight to be placed on the scale.
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One Degree wrote:
You don't think determining a case based upon 2 attorneys each presenting precedents from an earlier era subverts the facts of a current case?
It would seem the case is then determined by the attorneys ability to find the best precedents rather than arguing the correctness of actions.
Precedents simplify the legal procedure, but is it the fairest method, in your opinion?


Precedent provides stability and continuity. Similar situations should be decided the same way.
Moreover, precedents are not absolute rules. They are only guides and can be ignored if court thinks it wise.

Court decisions should be based on existing law, not the individual opinions of judges or attorneys.

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