Morgentaler Exam Notes
1. How do you find answers to the everyday questions in your life?
a. By making philosophically informed refelction
b. Infelcted by a careful reading of the greats
i. Aristotle, Hume, Kant etc.
2. What are the problems associated with finding answers that way?
a. Diferent people have different opinions, so we disagree on reasonables
b. There are diversity of views – reasonable pluralism
c. Social policy forces people to live in a certain manner
d. it is unfair to require people to live on terms that they do not accept
3. what are the solutions for these problems?
a. Comparing religions- (veil of ignorance: you shouldn’t be biased in your opinions, and
put yourself in the position to think)
b. Tolerance as an agreement to ‘live and let live’ – mind your own business
c. Limits to tolerance: some religious practices are not reasonable.
4. Comprehensive Moral Doctrine. Define
a. It’s the account of what matters morally in life that aspires to complete generality.
These are influenced by
i. A religious outlook
ii. Philosophical doctrines
b. All competen adults have one, even if its often onchoate or fragmentary
c. Manifested in our moral intuitiosna nd moral emtions
5. Political Conception of Justice (PCJ). Define
a. An account of how the basic structure of society should be arranges
b. Limited in scope establishes the genral framework for scoeity, not all its details
c. Akin to a constitutional framework.
d. The PCJ is an ideal.
i. It doesn’t appeal to a certain CD, but applies so that conflicting CD;s can accept
ii. Religious tolerance can be instead said to be broadened to tolerate CD’s
iii. Political philosophy is not based in mroal philiospophy but based on separate
6. What are the charactersitics of unreasonable CDs.
a. Refuse to recognize the fact of pluralism – biased, arrogant, forced others to live by
b. Subscribers to an unreasonable CD want to force others to live within its terms
c. If a person with an unreasonable CD forces others to live by their doctrine, the state can
legalliy protect the victims of this oppression.
7. How is a PCJ determined?
a. Rawwl’s thought experiment: i. The orginal position (OP) – where citizen some together in a new society who
need to set up the rules for their fundamental social institutions
b. Need to ensure that those with disproportionate power don’t set up rules to their
c. Veil of ignorance: assume those in the original position know all sorts of social facts
(iiincluding FRP factor of reasonable pluralism, social policy forces people to live a
certain way and it is unfair that people live on temrs that they do not accept) but do not
know what CD they hold
8. What are the outcome of PCJ?
a. First Pass. want each person to have an equal say in establishing concrete rules and
policies: fair to each person we might turn out to be. – eg: democracy
b. Second pass could be a democratic major, but unfair to the minority.
i. Eg: tyranny of the majority
ii. Protects some fundamental CDs of the society but not all of it.
9. What is Democarcy?
a. Democracy is any legislation must not infringe on citizens fundamental freedoms,
10. What are the fundamental freedoms associated with democracy? (CADS)
a. Freedom of conscience
b. Freedom of speech
c. Freedm of association
d. Freedom from discrimination based on membership on a social group
11. What are the problems associated with PCJ?
a. Might need more before we have a satisfactory PCJ: need more rights other than CADS.
• Welfare rights?
• A right to health care?
b. Does liberal democracy force people to live by individualistic CDs?
i. • PCJ does allow individuals to live by their own convictions
ii. • Doesn’t require that their convictions be individualistic : doesn’t require to be
12. What are the problems in implementation
a. How can we tell whether a democratically established law infringes on citizens’ right to
live by their own CD? -
b. Solution: Need a court that is empowered to strike down discriminatory laws.
13. What is the Tyranny of the Nine? a problem we encounter once we implement a court.
14. How can we protect ourselves from judges who use their power to enforce their own CDs?
a. Charter of Rights and Freedom
15. What are the differences found in the charter of right?
a. Anomalies in the Charter : preamble s. 1, s.33
16. Ontario: Rosalie Abella, Andromache Karakatsanis,
a. Michael Moldaver
b. Quebec: Richard Wagner, Morris Fish, Louis LeBel
c. West: Beverley McLachlin (BC) and Marshall d. Rothstein (Manitoba)
e. East: Thomas Cromwell (Nova Scotia)
f. Chief Justice: McLachlin
17. What is the Abortion Law in Canada
18. Who is Henry Morgentaler
a. Abortion doctor, was acquitted, imprisones, retries, acquittal.
b. SCC Supreme court of Canada rules s.251 violates Charter overturning abortion law
19. What overturned the abortion law in 1988 s.251.
20. What was the gist of the morgentaler decision?
a. S 251 violates the abortion law because the womans life to right trumps the fetuses’s
right to life.
21. Judicial Restraint. define
a. This is the best way to avoid the tyranny of the nine. You should tailor the decisions to
the details of cases rather than to attempt tp resolve a broad ethical issues. Otherwise
there is a danger that the judge will be letting her CD drive the decision.
b. S 7 the right to life, liberty ad security of the person. Wilson says that it is not clear if
the fetus is comvered by the word ‘everyone’ .