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The difference between natural law and legal positivism
Relation between law and morality
Law and morality
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In this essay I intend to discuss the relationship between law and morality through the perspectives of legal philosophers, I will provide a brief explanation of law, and what does law intend to achieve in the society. When discussing the relationship between law and morality I will consider the distinction between the theory of natural law and legal positivism and how these two theories influence each other and whether there is a legal or moral duty for the society to obey the law.
Legal philosophers have tried to provide a brief explanation for the meaning of law; however their definitions have been vague and ambiguous. John Austin explained law as ‘something which is man-made and separate from morality and justice, furthermore provided that law is compiled of series of commands of a political sovereignty and impose sanction on those who disobey them.’ Austin definition is one sided in a sense that it accommodate criminal law and exclude other forms of law. On the other hand the school of natural lawyers argues that law comes from the higher being and human laws must conform to higher standard of morality. Natural lawyers provide that law is valid if it has a certain moral content. We can explain law as set of rules that regulate human conduct and relationship between state and it also provide the manner in which state powers are constrained and exercised, However having said that we realise that law is normative and prescriptive; laws are enacted to facilitate different things in the society.
Law intends to create a stable society which guarantees members of the society protection and allow them to engage in matters that really affect them, these is achieved through the voluntary transfer of rights to the leaders who are ent...
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... law thinkers who believe that law is enacted with the intention of subjecting inferiors to the power sovereign. Natural law unlike positive law does not intend to subject people to the rules of the sovereign but distribute burden fairly amongst member of the society. In order to achieve the aims and intention of law it is necessary for the society o obey the law. Laws are enacted to promote social practices or eliminate undesirable conduct, however by doing this the rights of the society must promoted.
Law and morality influences each other greatly, both of this theories support and uphold the fact that there is an duty to the members of the society to obey the law, even if there is a slight distinction between the these theories ultimately they all want to serve a common purpose which to provide the society with stable authority that regulate their relationships.
Legal consciousness refers to how people’s different conceptions of law determine whether they mobilize or resist the law (SOC216, Jan. 26). Susan S. Silbey and Patricia Ewick disclose three narratives of how people perceive the law: before the law, with the law and up against the law (2000). Individuals who are before the law fundamentally treat legality as an objective realm that is removed from their ordinary social lives (Silbey and Ewick 2000). They believe that the law is a hierarchical classification of rules that is both majestic and impartial (Silbey and Ewick 2000). In regards to ‘with the law’, legality is described and played as a game, in which existing rules can be arrayed accordingly and new rules can be invented in order to serve the individual’s interests (Silbey and Ewick 2000). Legality is described as a “terrain for tactical encounters” where
Law and Society, Ninth Edition, by Steven Vago. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc
Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be
It is no surprise as to why the case Riggs v Palmer is such a renowned case, for this case tests the importance of many of the philosophers’ theories, especially on the validity of certain laws and the conflict between law and morality. This hard case has been used as a reference for many court decisions over the years and will be most likely used in the future as well. An inference can be made based on this case and the legal conflicts and issues that the judges faced when reaching their verdict. Those who commit the crime should not be rewarded by attaining what motivated them in the first place as the fruit of their crime, and in the event that such a crime occurs, judges must interpret the law in the same manner that the law makers intended
In every society around the world, the law is affecting everyone since it shapes the behavior and sense of right and wrong for every citizen in society. Laws are meant to control a society’s behavior by outlining the accepted forms of conduct. The law is designed as a neutral aspect existent to solve society’s problems, a system specially designed to provide people with peace and order. The legal system runs more efficiently when people understand the laws they are intended to follow along with their legal rights and responsibilities.
Natural law is a natural sense of what is right and wrong. Natural Law Theory states that laws are rational standards. Thomas Aquinas talked a lot about Natural Law Theory
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
At this point one can distinguish Black?s tendency to unite the opposites, especially evident in his concluding paragraph stating that if all the trends continue, humans are in the advent of a new society, which will be ?at once close and distant, homogenous and diverse, organized and autonomous, where reputations and other statuses fluctuate from one day to the next? (Black 133). The author predicts the future of law, its quantity and style as the meteorologist predicts the weather, observing the environment and making conclusions.
Brink says that then we can clear Mill of the charge of inconsistency about legal moralism. Since, Mill seems pretty consistent with his rejection towards legal moralism. This seems to bring up the debate between Mill and Stephen. Stephen is the author of Liberty, Equality, and Fraternity: in which he talks about his defense of the uses of criminal law to promote virtue and curb vice. Mill is the one who provokes Stephen’s criticism, rendering that Mill is an anti-moralist. A century later, Lord Devlin revived Mill and Stephen’s arguments in which Devlin’s defense of legal regulation of homosexuality, prostitution, and pornography, and liberal criticisms. It can be tempting to reject legal moralism of Stephen and Devlin because of Mill’s anti-moralism, but temptation can be resisted.
Why is the concept of the rule of law an important aspect within society to have an integral understanding of? The rule of law is a facet of our society that affects and serves our lives on a daily basis because rules and laws dictate the underlying basis of our social interactions. One basic understanding of the idea of the rule of law is that society should be ruled by law, and not by men. At perhaps the most rudimentary level, the rule of law has been used to explain a type of governance that is founded upon universal and neutral rules. Endicott argues that communities can never adequately achieve the rule of law because “it requires, among other things, that government officials conform to the law. But they may not do so, and presumably there is no large community in which they always do so” (Endicott, 1999, p.1). Consequently, an area of rule of law is explored by Aristotle’s critique of Plato’s philosopher-rulers theory and his defence and understanding of the rule of law.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The history and the evolution of what we know as law, has developed out of many different viewpoints and philosophies. It has been the result of the operational and manipulative aspects of public affairs, and also seems to be the creation of different philosophical systems. There have been many that have been innovators in this area of thought from political leaders and dictators, to others who were simple political idealists and philosophers. Through the wisdom and teachings of Plato, law has evolved into many different systems, and through this paper we will discuss the impact this particular philosopher had had on our modern system of democracy. We will also try to recognize that law will continue to evolve, as does man throughout history.
Both law and morality serve to regulate behaviour in society. Morality is defined as a set of key values, attitudes and beliefs giving a standard in which we ‘should’ behave. Law, however, is defined as regulating behaviour which is enforced among society for everyone to abide by. It is said that both, however, are normative which means they both indicate how we should behave and therefore can both be classed as a guideline in which society acts, meaning neither is more effective or important than the other. Law and morals have clear differences in how and why they are made. Law, for example, comes from Parliament and Judges and will be made in a formal, legal institution which result in formal consequences when broken. Whereas morals are formed under the influence of family, friends, media or religion and they become personal matters of individual consciences. They result in no formal consequence but may result in a social disapproval which is shown also to occur when breaking the law.
Jürgen Habermas focused on law, as the integrative mechanism in modern society and that it has become a central position in society.
Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong and how we, humans, should act to achieve a peaceful society while enjoying individual freedoms. The key to a successful nation is a firm, strong, and fair code of high laws that provides equal and just freedom to all citizens of the country. A strong government is as important as a firm code of law as a government is a backbone of a country and of the laws. A government is a system that executes and determines its laws. As much as fair laws are important, a capable government that will not go corrupt and provide fair services holds a vital role in building and maintaining a strong country.