Ethical Reasoning

1
Ethical Reasoning

• When we are answering questions about what is the
  right or wrong thing to do, we are attempting to
  give reasons that any reasonable person can
  accept as reasons.
• Unacceptable reasons
• Arbitrary reasons
• Prejudicial reasons (irrelevant, based on
  personal opinions)
• Appeals to questionable authority (God, society,
  leaders)
• Acceptable reasons
• Based on the kinds of considerations that
  reasonable persons can accept
• Reasons that we can discuss and debate
• Reasons that can be supported by larger ethical
  arguments or frameworks
• That we dont currently have agreements doesnt
  mean reasoning ethically is hopeless.

2
Assessing Ethical Arguments

• Arguments are presented in an attempt to
  persuade oneself or others of the rightness of
  some claim. Arguments in philosophy dont
  require opponents or disagreements. Arguing
  philosophically involves reasoning from one claim
  or set of claims to another. An argument is any
  attempt to justify or give reasons for a belief.
• Successful arguments generally contain
• Premises reasons given in support of a belief
  (generally less controversial)
• Conclusion the belief one wants to assert as
  right
• e.g. Where a war is waged, innocent people die.
• The U.S. is waged war in Iraq.
• Therefore, innocent people died in Iraq.

3

• 1. Truthfulness Are the premises or reasons
  given for a belief true? Are they based on
  facts? What sorts of facts are they based on?
  What are the sources of the facts? Are they
  reliable sources?
• 2. Clarity Are the concepts expressed clear
  and unambiguous? Can we make sense of what is
  being asserted? Are the concepts being used
  concealing other beliefs?
• 3. Validity Do the reasons provided actually
  support the conclusion? Are the reasons
  relevant? Are the reasons forceful and
  compelling?
• If an argument is valid and the premises are true
  then the argument is said to be sound and
  logically we ought to accept the conclusion.
• NOTE Arguments are the sorts of things that are
  valid and invalid. Premises (statements, claims,
  beliefs, etc.) are either true or false.
• 4. Consistency Do the beliefs fit together in
  an orderly way? By embracing two different
  principles or beliefs, do we avoid contradicting
  ourselves?
• 5. Coherence Can we accept the conclusion of
  one argument and at the same time maintain other
  views we believe to be right? Does the principle
  in question cohere with our broader principles
  and beliefs? Can we adopt a conclusion and take
  action according to it without compromising other
  beliefs that we have?

4
Ethical Argumentation an example
1. The satisfaction of our non-harmful desires
is good. 2. The more satisfied desires the
better. 3. It is reasonable for me to prefer my
greater future desire satisfaction to my lesser
current desire satisfaction. 4. When I reason
impartially, I can recognize that my desire
satisfaction is no more or less good than your
equal desire satisfaction. 5. It is reasonable
for me to prefer your greater desire
satisfaction than my lesser satisfaction. 6.
Thus, to promote the good, given two or more
options, I should do that which leads to the
greatest desire satisfaction for all affects by
my action (even when it doesn't promote my own
desire satisfaction). Paraphrased from Henry
Sidgwick Methods of Ethics
5
Constitutional Interpretation

• Originalism
• Textualism (sometimes called strict
  constructionism)
• Intentionalism
• Original Meaning

• Non-interpretivism
• Living Document doctrine
• Fusion between moral theory and the law

6
Law and Morality
1. The law is morality -- they reduce without
remainder to each other What might be wrong with
this answer? There can be immoral laws (e.g.
slavery laws, marriage laws) It appears that we
can assess laws in moral terms, so the latter
cannot be reducible to the former There are laws
that are independent of morality (e.g. laws
regulating commerce, speed limits, zoning
laws) There are laws that are designed to
efficiently regulate social interactions, but
they arent necessarily morally right ways, they
just are one of a possible myriad of ways to
organize social interactions. 2. The law
influences morality Sure, if we mean by morality
something like common sense morality or public
morality but not systematic morality 3.
Morality influences the law What sort of
influence? undergirds it/justifies it and/or
supports it and/or informs it 4. The law
enforces morality -- laws are designed to codify
morality
7
When is the State Justified in Limiting Behavior?

• When the behavior is harmful to others.
• When the behavior is a violation of
  constitutionally protected rights.
• When the behavior is in conflict with a
  compelling state interest.
• When the behavior is contrary to law.
• When the behavior is contrary to beliefs so
  rooted in the traditions and collective
  conscience of our people.

8
Arguments for Limitations?
9
Unpacking the Harm Principle

• What constitutes harm?
• Physical Harm
• Psychological Harm
• Economic Harm
• Participatory Harms (exclusion, discrimination)
• Offense
• Annoyance
• Interest set-backs
• Is there a distinction between harming and not
  helping?
• Can the line be drawn between public and private?

10
Privacy Law

• Old
• Privacy understood as the right to be left alone,
  most powerful at the time in tort law -- between
  1890 and 1941 12 states recognized the right, by
  1956 18 states did, and more than 31 states did
  by 1960.
• Spacial Privacy (4th amendment)
• Laws dealing with private injuries -- the public
  revelation of embarrassing personal facts or the
  use of ones name or likeness for commercial
  purposes without ones approval.
• Four distinct torts
• 1. Intrusion upon the plaintiffs seclusion or
  solitude, or into his private affairs.
• 2. Public disclosure of embarrassing facts about
  the plaintiff.
• 3. Publicity which places the plaintiff in a
  false light in the public eye.
• 4. Appropriation, for the defendants advantage,
  of the plaintiffs name or likeness.
• The social value or interest we call privacy is
  not an independent one, but is only a composite
  of the value our society places on protecting
  mental tranquility, reputation and intangible
  property.

11
Privacy Law

• New
• Privacy increasingly understood not just as
  spacial privacy and information privacy, but
  privacy of thought, association, lifestyle, body,
  and decisions.
• The right to be left alone interpreted as an
  autonomy right.
• Penumbra of the 1, 3, 4, 5, 9, and 14th.
• Central Case Law
• Skinner v. Oklahoma (1942)
• Pierce v. Society of Sisters (1925)
• Meyer v. Nebraska (1923)
• NAACP v. Alabama 357 US 44 (1958)

12
Amendment I Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof or
abridging the freedom of speech, or of the press
or the right of the people peaceably to assemble,
and to petition the government for a redress of
grievances. Amendment III No soldier shall, in
time of peace be quartered in any house, without
the consent of the owner, nor in time of war, but
in a manner to be prescribed by law. Amendment
IV The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized. Amendment V No person shall be held to
answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land
or naval forces, or in the militia, when in
actual service in time of war or public danger
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or
limb nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived
of life, liberty, or property, without due
process of law nor shall private property be
taken for public use, without just
compensation. Amendment IX The enumeration in
the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by
the people. Amendment XIV Section 1. All
persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States nor shall any state deprive any
person of life, liberty, or property, without due
process of law nor deny to any person within its
jurisdiction the equal protection of the laws.
13
Griswold v. Connecticut

• Background Between 1943-1965 the court refused
  to hear cases addressing the constitutionality of
  the Connecticut contraceptive ban based on a lack
  of standing. When Dr. Buxton and Estelle
  Griswald were arrested and found guilty of
  violating the law, standing was acknowledged.
• Justice Douglas (writing for the majority)
  initiated an ongoing controversy in
  constitutional politics by, in the words of
  Justices Black and Stewart, allowing the court to
  become a super-legislature by creating a right
  of privacy out-of-whole-constitutional cloth.
• In 1972, over the dissent of Chief Justice Warren
  Burger the court overturned a Massachusetts law
  forbidding the use of contraception for unmarried
  individuals in Eisenstadt v. Baird (405 US 438).
• Justice Brennan wrote It is true that in
  Griswold the right to privacy inhered in the
  marital relationship. Yet the marital couple is
  not an independent entity with a mind and heart
  of its own, but an association of two individuals
  each with a separate intellectual and emotional
  makeup. If the right to privacy means anything,
  it is the right of the individual, married or
  single, to be free from unwarranted governmental
  intrusion into matters so fundamentally affecting
  a person as the decision whether to bear of beget
  a child.