Certainty of Objects

Certainty of objects is required for a trust to be declared valid. However, different tests are used for different types of trusts.

Fixed Trusts

Discretionary Trusts

 

Situation Ethics

Here is a short video on situation ethics – below are some more detailed notes!

Situation Ethics – Notes
  •  Situation Ethics is a relativist theory of ethics. The only principle which is used when determining morality in this theory is ‘Love your neighbor as yourself’.

 

  •  ‘Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres. Love never fails.’ 1 Corinthians 13. This quote is just one example of how the new Testament promotes this idea that love is the best way to respond to everything.

 

  • Fletcher, an American Theologian, promoted this idea of situation ethics in an influential book written in the 60s.

 

  • Situation works by first look at individual situations and applying general principles to them. The key in this type of ethics is love.

 

  • In other words, whatever situation we are faces with we should do the most loving thing.

 

  • But what is love? There are 4 different types according to the Greeks: PHILOS -friendship, STORGE -family love, EROS- erotic love and AGAPE – selfless love.

 

  • The reason why Fletcher believed in situation ethics and dismissed Natural Law is because he believed the individual concerned is more important than the action and every situation should be judged according to its own context.

 

  • Situation ethics is a branch of Christian ethics. The Christian God is personal one therefore Situation Ethics claims that morality too should be person-centered and as far as the conscious is concerned it is used to formulate the decision in each circumstance. Decisions are made situationally!

 

  • Situation ethics is mid way between 2 extremes: ANTINOMIANISM – no rules, principles etc. which is a recipe for moral disorder and LEGALISM- rule based moral systems where rules become more important than people.
THE SIX PRINCIPLES OF SITUATION ETHICS
  1. Nothing is good in it self except AGAPE
  2. Jesus and St Paul replaced the torah with AGAPE
  3. Love and justice are compatible
  4. Love wills the goods of thy neighbor
  5. Love is the end that is sought – agape is a consequentialist ethic
  6. Love’s decisions are made according to each individual context.
Weaknesses
  • Dangers that we miss the big picture – immediate responses may not be the most loving thing in the long term.
  • It is not structured – there is no collective ethical framework.
  • Our emotions can cloud our judgement making it hard to see if we are acting out o f love.
  • What is the most loving thing to do for one person may not be the most loving thing for someone else.
  • Can human nature really allow us to act out of unselfish Christian love.

Utilitarianism

The video below aims to explain the ethical theory of utilitarianism.

 

In this video I provide a short explaination on the difference between act and rule utilitarianism.

 

 

Strengths and Weakness:

Bentham

Strengths: 

  1. Easy to use – clear criteria and offers a systematic approach to ethics.
  2. Utilitarianism cannot be faulted on its morals as it clearly seeks the happiness and fairness for the largest number of people, which has always been an important consideration in the works of government and other major powers, as well as in everyone’s everyday life. Designed for global politics unlike Kantian ethics.
  3. Also, it considers the consequences of all actions, which is key in building a civilized society. If people were not aware of consequences then there would be no deterrent to commit crime. 
  4. Also, it encourages a democratic approach to decision making, and minorities are not allowed to dominate. 
  5. It does not rely on any controversial or unverifiable theological or metaphysical claims or principals, so it is accessible to everyone.

Weaknesses 

  1. Difficult to predict consequences e.g. if you plan to hit someone you might predict that they will be upset because 99.9% of the time this is the result however, what if the person turns out to enjoy it and get pleasure out of pain – all you consequences are wrong!
  2. Utilitarianism is a demanding theory as something as simple as buying an ice-cream can be deemed immoral because you know that the money could be spent elsewhere in order to get the greatest good for the greatest number.
  3. Some critics argue it is too impartial – if a house was on fire and you could only save your mother or the world’s best sergeant you would according to the PoU (principle of utility) have to save the sergeant. No room for emotions. John Rawls advocates this criticisms pointing out that it could support a more dictatorial society just because it produces the greatest amount of pleasure.
  4. Utilitarianism is subjective – what is moral for one person isn’t the same for another implying that no such universal law system can exist. 
  5. Utilitarianism implies that everyone has a moral faculty (awareness that gives us a sense of moral judgement) and not everyone has this young kids, disables persons etc. This alienates people from the theory.
  6. Bentham and Mill both commit a naturalistic fallacy according to G.E.Moore, just because something is desirable and produces a lot of pleasure does not imply that we ought to pursue that action.

Mill

Strengths:

  1. Mill considers emotions a form of higher pleasure which is a strength because it can make the theory a little less impartial and allow more room for emotions. In the house on fire example (Bentham Weakness 3) Mill could possibly allow you to save your mother arguing  your emotions are a higher pleasure and since he gives no explanation of what to do if pleasures clash we could justice the saving of the mother.
  2. Mill’s idea of creating generalized rules makes the theory more objective and provides us a means to creating universal rules.

 

Weaknesses

  1. Difficult to predict consequences e.g. if you plan to hit someone you might predict that they will be upset because 99.9% of the time this is the result however, what if the person turns out to enjoy it and get pleasure out of pain – all you consequences are wrong!
  2. Utilitarianism is a demanding theory as something as simple as buying an ice-cream can be deemed immoral because you know that the money could be spent elsewhere in order to get the greatest good for the greatest number.
  3. Utilitarianism implies that everyone has a moral faculty (awareness that gives us a sense of moral judgement) and not everyone has this young kids, disables persons etc. This alienates people from the theory.
  4. Mill makes several elitist claims e.g. for example it is better to a dis-satisfied Socrates than a satisfied pig (comparing not so intelligent people to pigs), claiming that the higher your moral faculty the more difficult to find pleasure (as not so intelligent people are satisfied with almost anything). Yet what Mill fails to acknowledge is if through utilitarian values a pig can be satisfied then this devalues the intellectual ability of all humans.
  5. Mill uses non-utilitarian values such as justice (supreme moral good) and from this we can infer that there are more important things than happiness and this inference destroys the foundation of utilitarianism.
  6. As mentioned previously, Mill does not discuss what happens if rules/higher pleasure conflict. Adding to the ambiguous nature of utilitarianism.
  7. Furthermore, given that the rules are generalized and formulated through experience this means that they are not absolute and can be broken. But it is difficult to see how one would know when an exception could be added and if we keeping using exceptions and don’t make Mill’s utilitarianism rigid then this some scholars imply collapse it back to act utilitarianism. E.g. the rule tell the truth unless a lie produces more pleasure isn’t that essentially Bentham’s form.
  8. No two moral situations are exactly the same so how can rules based on past different (Albeit similar) circumstances helps us with new situations?
  9. Moreover, Mill argues that a competent judge would always pick higher pleasures over lower pleasures yet this is not true for all circumstances e.g. if Mill was somehow stranded in a desert he would not pursuit poetry or imagination he would pursue drinking water – which is a lower pleasure- doesn’t this mean he has an infirmity of the mind?
  10. Bentham and Mill both commit a naturalistic fallacy according to G.E.Moore, just because something is desirable and produces a lot of pleasure does not imply that we ought to pursue that action.

 

Quiz – Test Yourself

1. What is the Hedonic Calculus and another name for it?


2. Distinguish between higher and lower pleasure giving examples.


3. Which utilitarian theory focuses upon the quantity of pleasure and which on the quality of pleasure?


4. What are 4 components of the hedonic calculus?


5. What does Bentham believe is the supreme moral good and Mill? Does Mill agree?


6. If you pick a lower pleasure over a higher pleasure what are you said to have?


7. What is Mill’s famous quote (hint. think pig)


8. How would you describe Utilitarianism?


9. What are three strengths of Utilitarianism (Act or Rule)?


10. What are three Weaknesses of Utilitarianism (Act or Rule)?


__________________________________________________________

Answers


1. Felicific Calculus –  this is a calculation used by the universal hedonists to calculate how much pleasure an action produces.


2. Higher pleasure are those of the mind e.g. feelings, imagination and intellectual pursuits. Lower pleasures are bodily pleasures e.g. sex, drinking and eating.


3. Bentham’s Act utilitarianism focuses upon the quantity of pleasure and Mill’s Rule utilitarianism focuses upon the quality of pleasure.


4. Any 4 from: (i) Remoteness (ii) Certainty (iii)Fecundity (iv)Purity (v)Intensity (vi)Duration (vii) Extent


5. Bentham believes the supreme moral good is happiness and Mill disagrees saying it is justice.


6. An infirmity of the mind.


7. “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied”.


8. Secular, Consequentialist and Teleological theory.


9 and 10. For list of strengths and Weaknesses see above

Liability for Omissions

The introduction to actus reus post looks at the general rule for actus reus in criminal law. These three video focus on the liability for omissions.

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This first video looks at liability for omissions that arise out of the first 5 duties above (contractual, statutory, public office, voluntary assumption of duty and special relationships) as well as liability from the creation of dangerous situations.

 

This next video looks at liability for omissions arising out of status offences and continuing acts.

This last video sums up the main positions for and against liability for omissions.

 

Yes:

  • Taking the social responsibility view, yes they should because there is an assumption that that criminal law is here regulate behaviour including acts and omissions.
  • The individual autonomy argument is weak because rarely does the criminal law seek to promote this look at seat belts for instance.
  • A level of social corporation and social responsibility is both good and necessary for realisation of individual autonomy. This view is endorsed by professor Ashworth who argue that ‘each member of society is valued intrinsically, and the value of one citizen’s life is generally greater than the value of another citizen’s temporary freedom.

No:

  • Interference with the liberty of a person who wishes to mind his own business.
  • The defendant does nothing, the evil result would necessary occur in precisely the same way if tat that moment the alleged omission did not exist.
  • The aim of the law is to maximise individual autonomy.
  • Individual’s right to self determination is also at stake here.
  • Consequence of social responsibility view is it moves law to an intrusive stance making people ‘busy bodies’ as it is too onerous.
  • Impractical because it would require us to avert or alleviate large numbers of situations which we know about; how far will one go.
  • It is unfair unless citizens are aware of what can make them liable.
  • Therefore, to do it property legislation would have to be drafted. Legislature which much be phrased as precisely as possible, supported by a programme of education and information.
  • The present law is very balanced instead of having an ‘easy rescue’ law that many countries have where you punish where it would be easily to rescue someone, we have the duty of voluntarily assumed responsibility.
  • Causation – difficult to show how an omission can cause a particular result
  • The number of defendants that would be present – would this be sensible or responsible
  • The lack of MR

Psychiatric Harm

This post looks at the liability for psychiatric harm in the tort of negligence. The first video explores primary victims and second video looks at secondary victims. The final video looks at the policy reasons for restricting secondary victims. Before the videos, an overview photo is depicted.

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Video 1 – Primary Victims:

Video 2 – Secondary Victims:

Video 3 – Policy justifications for secondary victim restrictions: