Q The Separation of Law and Ethics
The separation between law and ethics has become a central pillar of most legal systems. This essay will review three articles that discuss insights relevant to this topic and acknowledge strengths and weaknesses that contribute to my understanding of this issue. First, Sheppard discusses the role of ethics, law and justice in society and how the state’s role becomes important when enshrining these laws. Second, Wendel analyses this issue through the lenses of the torture memos which were used to justify torture by the American government and how laws and morals were involved. Lastly, Campbell demonstrates the importance of why unanimous decisions are needed in judicial systems and how they could possibly collapse without them and how concepts such as legal validity, desirability, the ‘separability thesis’ and rules of recognition would stop this from happening. These articles show comprehensively that for harmonisation of law and ethics to become normal, a clear acceptance of certain standards would have to be articulated before such was to occur, because if such did not happen the disconnect would lead to differences becoming present and disruptive.
All three articles examined have created a distinct analysis by which we can examine the separation of law and ethics in our society. First, the article by Sheppard examines issues pertaining to the linkages between ethics, law and justice and how society goes about enshrining these laws in a manner that ensures continuity in the face of constant change. This article demonstrates a simple but effective illustration of how ethics, law and justice is developed. First, the individual creates the conduct by which they go about living their lif...
... middle of paper ...
...perly and without it could collapse and how concepts like legal validity, desirability, the ‘separability thesis’ and rule of recognition help enable this to happen, but again through diversity this makes it difficult for any meaningful change to come into effect. Overall, the harmonisation of law and ethics is just too difficult a task to complete, because it requires a commitment by all to enshrine a legal framework applicable to all and universal in nature, irrespective of the differences that divide us.
References
Campbell, Tom. 2002. Legal Validity and Judicial Ethics. Centre for Applied Philosophy and Public Ethics (CAPPE): Melbourne.
Sheppard, Steve. Law, Ethics and Justice. Encyclopaedia of Life Support Systems (EOLSS): Paris.
Wendel, W. 2005. Legal Ethics and the Separation of Laws and Morals. Cornell Law Faculty Publications: New York.
Nye, Howard. PHIL 250 B1, Winter Term 2014 Lecture Notes – Ethics. University of Alberta.
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
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,
Laws today are far different from centuries ago where the laws were more regions and biblical based. The implications, raised by Harold Berman, of the separation of transcendent religious principles from the formation of law are interesting and enlightening. “[O]ne major symptom of this threatened breakdown is the massive loss of confidence in law-not only on the part of law-consumers but also on the part of law-makers and law-distributors. A second major symptom is the massive loss of confidence in religion-again not only on part of those who (at least at funeral and weddings) sit in the pews of our churches and synagogues, but also on the part of those who occupy the pulpits” Harold J. Berman, Faith and Order The Reconciliation of Law and
MacCormick’s institutional theory advances from Kelsen’s pure theory of law which considers politics and morality to be impurities. Whilst politics involves the process of law-making, MacCormick dismisses it from the institutional theory as it concerns the exercise of power to act in a certain way rather than according to the normative order. It is argued that the law is not coercive but normative in power as legislation has the power to alter practice without the need to provide direct orders to agencies. Nevertheless, this argument has limitations as the law can also be deemed as coercive due to the sanctions that the judiciary can impose on individuals. Furthermore, legal positivists argue that moral norms are distinct from legal norms and therefore prefer to exclude it from the institutional law theory. MacCormick argues that not all legal rules contain a moral element. This is a limitation of the theory as the law can only maintain the normative order in the “legal sense.” Different people have different views on what is morally correct and if this is not embodied in the law then it is difficult for the normative order to be upheld as there would be a conflict in the decision of what ought to be done in the circumstances. Moreover, this theory is based on democratic law which is not universal and therefore rejects the
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Similarly morality is another normative system of morals where a group deems what is right and wrong. Understandably morals and law intertwine as both are concerned with upholding standards. However, the standards are not always the same and subsequently can conflict. Challengingly, in a modern democratic society finding a p...
Both legal and moral rules have certain characteristics which help us identify them and to distinguish them from each other. One characteristic is their
Orlik, D. Ethics for the Legal Professional. Pp. 151. Vitalsource for Kaplan University.Pearson Learning Solutions, Bookshelf. Retreived from http://online.vitalsource.com/books/9781269310697
Ethics and law do not always go hand in hand. Not every law is ethical, and even if a law is considered ethical on its surface, it may result in unethical outcomes. "Ethics refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues.”
When drawing on the contrast between legal positivism and legal ethics, Manderson’s reading of Maurice Sendak’s children’s story, “Where the Wild Things Are” offers a thesis that is grounded on the idea of the absence of ethics within modern law. It is his belief that this absence is brought upon by the dominance of legal positivism.
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
Frank A. Easterbrook, ‘Legal Interpretation and the Power of the Judiciary’ [1984] 7 Harv. J.L. Pub. Pol’y 87 http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hjlpp7&div=18&id=&page= accessed 14 February 2012. J. A. Holland & Julian Webb, Learning Legal Rules, 6th edn, Oxford 2006, pp. 113-117.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.