The Law as a Moral Agent: Making People Good (SpringerBriefs in Law)

This book examines the controversial and repercussive contention that an objective of the law should be to promote personal morality - to make people ethically better. It surveys a number of domains, including criminal law, tort law, contract law, family law, and medical law (particularly the realm of moral enhancement technologies) asking for each: (a) Does the existing law seek to promote personal morality? (b) If so, what is the account of morality promoted, and what is the substantive content? (c) Does it work? and (d) Is this a legitimate objective? Contents Chapter 1: Introduction Chapter 2: Contract and the Law of Property 2.1 Introduction 2.2 Theories of Private Law 2.2.1 Law and Economics 2.2.2 Kantian Theories 2.2.3 Public Good 2.2.4 Theories of Flourishing 2.2.5 Legal Moralism 2.2.6 Putting the Theories Together 2.3 Contract Law 2.3.1 Promises and Contract Law 2.3.2 Good Faith and Contract Law 2.3.3 Distinguishing Contracts and Torts 2.4 Property 2.5 Conclusion References Chapter 3: Tort 3.1 Introduction 3.2 A Historical Overview 3.3 Tort: Private or Public Law? 3.4 Tort as Appeasement, Justice, Punishment, and Deterrence 3.5 Can the Tort of Negligence be a Moral Agent? 3.6 Conclusion References Chapter 4: Family Law 4.1 Introduction 4.2 Enabling and Encouraging Relationships 4.2.1 Protection from Physical Abuse 4.2.2 Protection from Economic Unfairness 4.2.3 Divorce 4.3 Valuing Care 4.3.1 Defining Parenthood 4.3.2 Financial Orders 4.3.3 The Welfare of Children 4.4 Messaging 4.5 Conclusion References Chapter 5: Criminal Law 5.1 Introduction 5.2 Criminal Trials, Convictions and Punishment as a Moral Conversation 5.2.1 Censure 5.2.2 What Is Censured? 5.2.3 Treating the Defendant as a Moral Agent 5.2.4 The Constitutive Role of the Criminal Justice System 5.2.5 How the Criminal Justice System Could Work Better 5.2.6 Conclusion on the Communicative Nature of Criminal Justice 5.3 Permitting Virtue 5.4 Acts The State Must Criminalize 5.5 Conclusion References Chapter 6: Medical Law 6.1 Introduction 6.2 Abortion and the Status of the Embryo/Fetus 6.3 Clinical Negligence 6.4 Consent Generally 6.5 Confidentiality 6.6 The End of Life 6.7 Organ Donation 6.8 Conclusion References Chapter 7: Moral Enhancement 7.1 Introduction 7.2 Definitions 7.3 Arguments for and Against Moral Enhancement 7.4 A Closer Look at the More Cogent Objections to Enhancement 7.5 Are Technological Enhancements Any Different from Non-technological Enhancements? 7.6 Is Enhancement Really Any Different from Therapy? 7.7 Legal Regulation of Enhancement 7.8 Should the Law Seek to Regulate or Encourage Enhancement? 7.9 Conclusion References Chapter 8: Epilogue