Philosophy of Law Issues - Essay Example

Philosophy of Law Philosophy of Law Law is one of the most intricate aspects of socio-political life; it revolves around the life of individuals and helps them coexist in tandem with one another. It is based on a philosophy as talked about by eminent thinkers and its very features emanate a sort of philosophical thinking on the basis of what law exactly is. Law generates human behaviour and is answerable for the actions of the people; it thus control and regulates the manner in which people exist around each other and thus, it poses an intellectual question as to how it carries out the same function. General jurisprudence, as part of law, thus maintains a strong hold over this very normative aspect of law as it tries to answer the questions about how law dominates over every aspect of society at large. Philosophy of law thus boils down to the combination of concepts and theories that assist in the understanding of the very nature of law, the command that it holds within society as well as the sources of its authority. (Julius) The philosophies of Thomas Hobbes, Jeremy Bentham, and of course John Austin, have all added up to the nature and comprehension of law as well as the legal validity between legal positivism and the philosophy behind it. What exactly is law is the question that most legal philosophers have aimed to define during the course of their lifetime, and the various schools of thought that have contributed towards the same are legal positivism, natural law, legal realism and legal interpretivism. In order to address these questions, they have been placed under the branch of jurisprudence, since the 18th century. The legal philosopher Isodore states that “we call these legal matters just which are adapted to produce and preserve happiness and its parts for the body politic, for the state are a perfect community”. (Aquinas) The author states that law is normative in nature for the good of citizens; it purports the benefit of the various people living under the law, together, for their common good. At the same time hower, it also aims to provide individual good for as many as possible. This merges with the Utilitarian theory of Jeremy Bentham where he states that the law should aim for the greatest good of the greatest number. A consideration thus to understand the phiosophy of law should be made towards understanding the distinction between law and morality on the basis of the above mentioned. When the law tends to bend towards a form of socil control, it seeks answers to the question relating to the community; for example, in what sense should the law of a community seek to give effect to its morality and the moral duty of a community even if it does not represent the law. Aquinas thus aims to answer these questions by dividing society into its hierarchy – separating the lower grades of people from the higher ones and then answering according to the kind of intellect as well as instinct that different kind of people would attach themsleves to with respect to morality. Aquinas then talks about the reason that a man is guided by; he states that since every man makes competent laws because of reason, any man could lead another to the path of virtue. The law is made for the common good of every man and thus cannot be made by every man; it needs to be made by a few thinkers at the center, rooting for the benefit of all. Like every father governs his household, every man cannot govern the state; it needs to be governed by a single father equipped to handle the greater good for most part of the people. “He that governs a family can indeed make certain commands of ordinances but not such as to have properly the nature of law.” (Aquinas) Natural law talks about the laws that maybe unjust and that which are not true in nature; these laws are just in nature and cannot be created but can be discovered and are found within resolving conflicts among people and can only be determined by referencing them with moral principles in society. Jeremy Bentham on the other hand talked about legal positivism defined with respect to a method of social control and he said that social rules and norms could be identified as laws as people had been practicing them for a long time in order to live in a civil society. Following him, John Austin popularized his views by stating the one legal aspect of life all law students are aware of; that the law is a command of the sovereign and is backed by threats or sanctions, and is punitive in nature. H.L.A Hart played a pivotal role in transporting the views of legal positivism to the 20th century as he in his book addresses three critical issues. The questions which arise from these legal issues are (1) how does law differ from and how is it related to orders backed by threats? (2) How does legal obligation differ from, and how is it related to, moral obligation? (3) What are rules and to what extent is law an affair of rules? (Hart) Hart argues in the first chapter of his book that laws are varieties of imperatives which differ in nature according to the tone of the individual. The acts of human beings to ask someone for help, to request someone for an act, or to order someone to do or to abstain from doing something, which might be backed by threat, or in other case where a man might be coerced to do something are all an indigenous part of the social nomenclature in which the society thrives and survives. Hart argues that law is a social construction backed by history. Law is an institution which always did not exist. It emerged for special reasons, and because of those reasons it has taken the form it takes. Hart conceptualises that wherever there is a law, there is a sovereign, characterised negatively and positively by reference to the habit of obedience; a person or body of persons whose orders the great majority of the society habitually obey. This is the fundamental relationship between the subject and the sovereign. The next school of legal philosophical thought to be discussed is legal realism where law is understood as what is interpreted by courts, police offices and law offices and that the law should be understood as an amalgamation of how courts and officers work in actuality than to be determined from statutes and provisions. It is the implementation of these provisions that has converted this school of thought into a scientific law of sorts. Legal interpretivism, the fourth view of philosophical law, stated by Ronal Dworkin aims at providing a ‘verstehen’ or understanding of the moral aspect of facts that human beings regard as being legal. For example, punishing someone for a crime that they have committed is in the moral as well as intuitive nature of an individual, which has in turn formed a basis of the law. Dworkin states that no one can know the legal system that is in force within a state until he tries to understand the moral justifications with respect to the practices in society that are being carried out. Law is integral in nature; over the many years, philosophers and legal thinkers alike have tried to come up with various theories regarding the basis of law and how it appeals to the morals of society as well as an individual; this has converted the entire subject into fine grain like structures with almost an objectivity as well as answer towards every question posed, as has been discussed above. They also aim to discuss what the goals or objectives of law may be and how the morals within a society aim to lay the foundation for a clear cut legal structure for the people to follow. The philosophy of law thus assists in providing a foresight into the legal structure of a state and how it works rather than why it works. With the help of theories laid down by eminent thinkers and analysts, it is clear to an extent as to how a conflict may be resolved on the basis of not only what is black or white, but on the basis of morals as well. This common point of departure, however, leads to very different conclusions: according to Hart, none of this precludes jurisprudence from remaining basically descriptive and morally neutral; theorists like Dworkin, Perry, Waldron, and others on the other hand, reach another understanding. According to their theories, jurisprudence is dependent on moral considerations. What is mostly at stake here is the question of whether understanding the point, or purpose, or function, of a social practice (or any normative system), necessarily collapses into certain judgments about its worth or value. References Aquinas, T. (n.d.). Summa Theologica. Austin, J. (n.d.). The Principles of Jurisprudence Determined. Hart, H. L. (n.d.). Concept of Law. Julius, S. (n.d.). Philosophy of law. Retrieved from http://www.britannica.com/EBchecked/topic/332775/philosophy-of-law R. Wacks, Philosophy of Law. A Very Short Introduction, Oxford: OUP 2006 – treats subjects as natural law, legal positivism, application and interpretation of laws, rights and justice and others in very concise manner. Th. Morawetz, The Philosophy of Law. An Introduction, New York: MacMillan; London: Collier MacMillan 1980 (gives an introduction to the nature of (philosophy of) law, investigates judicial decision-making, looks as the relation between morality and law and treats responsibility and punishment). M. C. Murphy, Philosophy of Law. The Fundamentals, Malden et al.: 2007 (gives an overview concerning the basic concepts and the most prominent views explicating them; introduces to different realms of law, like criminal law, tort law; investigates the subject of the limits and criticisms of law and its institutions; entails suggestions for further readings.) Read More