Theory of Relationship between Law and Morality
The relationship between law and morals. Major breaches of a moral code are also likely to be against the law; criminal law provides the obvious example of . Anciently morality and religion were primary basis to govern the relationship between peoples. And there was no need to search for a law. Law is what is in the statute books, or has been enacted or decreed by an accepted authority. What is the relationship between law, morality and justice?.
Yet, there is no common understanding of justice and there is no unique book or text to refer to; and 2. Laws can vary from country to country and the process with which they are created can change as well. For instance, in democratic countries, laws are adopted following a long debate and an even longer process of checks and balances; conversely, in authoritarian countries, laws are decided and established by the ruling party or by the ruling person without seeking the support of the majority.
Conversely, the idea of justice is more or less consistent across all countries: Law vs Justice Building on the differences outlined in the previous section, we can identify few other aspects that differentiate law from justice. Difference between Law and Justice: Furthermore, international law applies to all countries that ratify certain covenants or treaties.
National laws are enforced by the government and its bodies police, judiciary, etc. Justice is the underlying principle upon which all laws should be based.
Yet, there is no implementation of justice as such, but laws and norms can be implemented and enforced in a just and fair way by judges, governments, lawyers and international bodies. The creation of a law follows a different process depending on the country, and can last few days or even months. Justice is not created; it is a broad concept that unites universal ethical and moral standards. Although it is not universally recognised, the idea of justice is based on values and principles that are intrinsic to the human nature.
The ideas of law and justice often go hand-in-hand but refer to two different ideas. The Lawyers' Perspective Many legal philosophers start from an unstated basic intuition: Quite naturally and imperceptibly they adopted the lawyers' perspective on the law. Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts.
They draft documents, conclude legal transactions, advise clients, etc. From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon. Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: In defining the concept of law we must begin by examining the following questions: Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?
Critically analyse the relationship between law and justice. - A-Level Law - Marked by dayline.info
The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.
For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.
Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does. The international Approach It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society.
It is however, unreasonable to study such institutions exclusively from the lawyer's perspective. Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society?
Three features characterize courts of law: They deal with disputes with the aim of resolving them. They issue authoritative rulings which decides these disputes. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration. At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions.
It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion. Clearly, a theory of adjudication is a moral theory.
It concerns all the considerations affecting reasoning in the courts, both legal and non-legal. When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument.
But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.
Law and Morality In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.
This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism.
This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness. Relationship between Law and Morality or Ethics Law is an enactment made by the state. It is backed by physical coercion.
Its breach is punishable by the courts. It represents the will of the state and realizes its purpose. Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state. It is through law that the government fulfils its promises to the people.
It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society.
Both regulate the conduct of the individual in society. They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality.
Theory of Relationship between Law and Morality
Laws regarding prohibition and spread of primary education are examples of this nature. Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of general welfare and moral perfection of man. It is the duty of the state to formulate such laws as will elevate the moral standard of the people.
The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political Science never made any distinction between law and morality. Plato's Republic is as good a treatise on politics as on ethics.
In ancient India, the term Dharma connoted both law and morality. Law, it is pointed out, is not merely the command of the sovereign, it represents the idea of right or wrong based on the prevalent morality of the people. Laws which are not supported by the moral conscience of the people are liable to become dead letters. For example laws regarding Prohibition in India have not succeeded on account of the fact that full moral conscience of the people has not been aroused in favor of such laws.
The total cost of such an attempt may well be greater than the social gain. Some points of distinction between law and morality may be brought out as follows: The Oxford English Dictionary defines the law as: The central themes of positivism are the contentions: In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.
Law regulates and controls the external human conduct.
It is not concerned with inner motives. A person may be having an evil intention in his or her mind but law does not care for it. Law will move into action only when this evil intention is translated into action and some harm is actually done to another person. All the individuals are equally subjected to it. It does not change from man to man. Political laws are precise and definite as there is a regular organ in every state for the formulation of laws.
It enjoys the sanction of the state. The fear of punishment acts as a deterrent to the breach of political law. It is concerned with the whole life of man. The province of law is thus limited as compared with that of morality because law is simply concerned with external actions and docs not take into its fold the inner motives.
Morality condemns a person if he or she has some evil intentions but laws are not applicable unless these intentions are manifested externally. It changes from man to man and from age to age.
Every man has his own moral principles. It does not enjoy the support of the state.