Philosophy and Law
Question 1
In many trial cases there appears to be disagreement between the court’s decision and the public opinion. Often we hear that the court’s decision contradicts the moral beliefs of individuals. People often rely on Court Justices to decide who is right or wrong, and expect them to make morally right decision. However, legal norms are different from moral norms, and should be decided differently. It appears so that the Court does not have authority over moral norms and reasons, and is not entitled with a right to oblige anyone to follow them. From here appears conflict between moral reasons and legal reasons. Separation between moral and legal norms will enable to lower the amount of misunderstanding and dissent between the jury and the witnesses of trial. Though to some of the witnesses of trial it may clear and obvious that the accused has done harm and should be convicted out of moral considerations, it may be very difficult or even impossible to prove the wrongdoing from the legal perspective. 
In the case of Oleff versus Hodapp, demonstrated by Martin P. Golding in Legal Reasoning, the gap between moral reasoning and legal reasoning is clearly demonstrated and shown. An owner of a bank account  Apostol made his nephew Tego a joint owner of the account, and in the will stated that the nephew should become the full owner of the account in a case of his death. When the owner of the account is murdered, and it has been proved that his nephew was “the moral author of the crime” (Golding, 86), the dilemma comes up to light: should Tego inherit the money in the bank account or should it be alienated from him because of the crime he had supposedly committed (Golding, 86)? A moral point of view on the situation proposes that no man should benefit from his wrongdoing. From a moral perspective the nephew should not inherit the property because this right to property has not been earned in a morally right way. However, the legal view proposes that property cannot be taken away from an individual for any reason.
In the case of Depue versus Flateau, demonstrated by Martin P. Golding in Legal Reasoning, another example of a gap between legal reasoning and moral reasoning is expressed. A man named Depue was in poor health condition, and sued another man named Flateau for not treating him in his illness and thus causing more harm to his health (Golding, 87). From a moral perspective Flateau should have done everything to save Depue from illness and possible death. If not for the indifference of Flateau, Depue could be saved from the injuries. However, from the legal perspective, the law does not require anyone to perform good deeds whenever someone is in need. Therefore, no person can be convicted of not helping someone in need. There is no law that would require him to do so. Thus, the court did not have grounds to convict Flateau of not helping Depue, and that caused some to disagree with the court’s decision based on the moral considerations (Golding, 88).
In the case of Summers versus Tice, presented in Legal Reasoning by Martin P. Golding, a very interesting and unique situation occurred. Two men, Tice and Simonson, were shooting in the same direction at the same time. One bullet struck another man, Summers (Golding, 90). Can the two shooters be convicted as one unit? From a moral perspective it is possible, but from the legal – not. In this case both men were equally wrong and negligent, but only one – guilty. In this case, it was decided that “[t]he wrongdoers should be left to work out between themselves any apportionment [of the damages]” (Golding, 90).
As Justice Brown said regarding the case of Depue and Flateau, “Those duties dictated by good morals or by humane considerations are not within the domain of the law. Feelings of kindness and sympathy may more the Good Samaritan to minister to the sick and wounded on the roadside, but the law imposes no such obligation; and suffering humanity has no legal complaint against those who pass by on the other side” (Golding, 88). From these words we see that there is a core difference between moral norms and legal norms, between moral obligations and legal obligations. The separation between the two is essential, inevitable, and the understanding of it should be present in court. Witnesses of the court, as well as the public in general, should understand the difference between the two and should not demand the court to make decisions based on both moral and legal reasons and arguments. Court is a legal institution, and by no means moral. Therefore, legal matters re to be decided there. Therefore, there should be enough separation between good moral reasons and good legal reasons in court in order to provide normal functioning and better understanding of court’s decisions by the public.
Question 2
There are several issues that were at play when the decisions of judge Parker in, Roberson vs. Rochester Folding Box Co. and justice Cobb, in Pavesich v. New England Life Insurance Co. had been taken. Most important of all, mentioned in the Roberson case, the so-called “right of privacy”. It is necessary to mention that there is no precedent for a demanded action found in the decision of this or any other court. Moreover, this principle is not easy to incorporate without violating some settled principles of law. Since courts do not possess the authority to legislate, they must decide cases upon principle, which could cause an embarrassment when provoked by precedents created by unjustifiable application of an old principle. Thus, it is difficult to find the ground for restraining the defendant from performing the act he/she was doing on the basis of causing harm to the plaintiff’s feelings. The reason is that the judge may not decide the case on the ground of some specific facts of this case, but must submit to some general principle upon which the cases of this kind must be decided.  Therefore, the decision that would accord a relief to the aggrieved party would require a change in the law and an introduction of a new legal principle. However, Judge Parker is unable to make such a decision since he must make a decision based on some general principle, because of the idea of fairness. The difficulty is that there is little or no criterion on which one must determine the differences or similarities between cases, calling for application of one principle or another.  It is precisely his inability to draw such a distinction that leads Judge Parker to rejection of Roberson’s claim. In Parkers’ opinion the claimed right would not only include not having one’s picture used for commercial purposes without his/her permission, but also imply that one has a right not to be gossiped about or insulted, which no one really has. As for merely recognizing the fact that one should not have his or her picture used for commercial purposes without permission, the court is unable to do so because this is an exclusive ability of legislature. 
Now let us examine the Pavesich v. New England Life Insurance Co. case, where, involving the same “right of privacy” a different decision was reached by the justice Cobb. Even though, up to 1890 a right to privacy was never recognized as such in any decision, and the actions involving privacy claims were brought on the basis of the right of property, or a breach of trust or confidence, or alike, which had caused the courts to be careful and cautious in their attempts to recognize such a right, one might argue that acknowledging a right to privacy was merely in consistency with the law of nature and the public good. As it has been mentioned above, in the new in principle cases the courts have no authority to give remedy, since they may only act in this way in cases new in occasion, which can be subjected to some general previously applied principle.  However, in cases with such rights as the right of privacy the common law must judge according to the law of nature. And every person in a normal intellectual condition would recognize the difference between the private and public matters concerning an individual in a society. Thus, an individual in a free society has a liberty allowing him or her to live according to his /her will. And, in particular, to lead a life of seclusion or, on a contrast, a life of publicity. 
For instance, a right not to have one’s body put on exhibition without one’s consent would be a part of an individual’s right to live a life of partial seclusion. Moreover, an idea of a person’s right to “be alone” has been incorporated into the common law from the ancient law, and has been appearing in various places ever since. Of course in a case of recognizing the right of privacy it would be quite difficult to decide where one individual’s right ends and another individual’s or public rights begin, because the right of privacy, just as any other individual right, is a subject to waving by a person possessing such rights. 
It must be mentioned that, unlike the case of Pavesich also involving libel, Roberson’s case concerned solely the right of privacy, which made it so difficult for judge Parker to rule in favor of plaintiff.  While this could add to the explanation of the Parker’s reasoning in favor of a conservative way of action, one must recognize the need for acknowledging the right of an individual for having privacy in his/her life, the limits to which can be exclusively set by this individual alone. 
The conclusion must be that which argues the need of a right of privacy to be recognized in court decision as well as by legislature. The reasons are the following. In every civilized society human beings possess certain degree of liberty and particular individual rights which they are partially willing to sacrifice in return for the benefits and protection the society offers them. However, their liberties, as well as a right of privacy, would be freely exercised in the natural conditions, since they   are fully consistent with the laws of nature. Moreover, the right of privacy must be recognized and freely exercised by any person in a society to the extent of interfering with another person’s individual rights or with the public good. 
Although the recognition of this right may interrupt with the way other individual rights, such as freedom of speech or property rights, are being interpreted, in later cases the common law must recognize and accept the right of privacy when ruling in favor of aggrieved parties. And the strongest argument in favor of such decisions would be the fact that the common law must submit to the law of nature and public good and recognize the principles that support harmony and individual well-being in the society and would display the strong concern for such.
Bibliography
Golding, Martin P., (1 Jun 2005). Legal Reasoning. Broadview Press. 84-96.