Indeed, natural law can be seen as a body of moral principles that are said to help guide human conduct. These laws are said to derive from nature it... ... middle of paper ... ... take hold of the responsibility that comes with making and obeying laws. Having a better understanding of a positivist and a naturalist perspective, each in their own regard, will enable us to engage with the legal system and with each other with greater fairness and efficiency. On top of respecting these philosophies in their individual realms, we must also recognize how they coincide and what this convergence means to the way in which we live our lives. Works Cited Fuller, Lon L. Positivism and Fidelity to Law: A Reply to Professor Hart.
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals
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... ... middle of paper ... ... 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.
Introduction The jurisprudential question as to whether in a modern constitutional democracy citizens have a duty to obey the law regardless of whether the content of the law is morally just or not has been central to many theorists. Natural law theorists advocate that laws should only be obeyed if they are in line with morality. Conversely, Positivists argue law has the status of law if a recognized ‘Human’ authority makes it in the accepted manner and therefore should be obeyed. Both theories if examined in their simplistic definitions are problematic. However, if one analyses individual theorists there are theorists from both schools who argue credibly.
There has been much written on John Rawls’ Theory of Justice (1971). This is because the notion of justice is a contentious issue, particularly when one attempts to apply it to the global scale. This poses a question with no simple answer – can there be a universal theory of global justice in a world characterised by cultural, economic and political difference? Modern analytical philosophy stipulates that one can achieve definite answers, as it can be compared to the natural sciences. Yet, it should be understood that political philosophies are highly circumstantial in nature.
Again he says the language of law when interpreted tends to define or apply to only specific behavior or situation at a specific time. Legal language is constructed in complex forms that make it difficult for people without the knowledge of the laws to interpret their meaning. In addition, the language of law always depends on fixed interpretation. In actual sense, if a law is not interpreted and therefore is not in statutes or has not being generally considered as a law then, no one can be considered a criminal for that offense. Though in reality, that offense may be morally wrong but it is yet to be discovered and entered as a legal principle thus, representing the prediction of the future consequences.
Each of the groups ideas of the nature of law contradict each others points. They agree with the law as a system of norms, but they disagree with the relation of law. But before he gets to discussing their points of view, he defines how the natural law theory is understood; which is based on positive law, that was founded by humans for humans; in which humans decide what conduct is right or wrong. They have an universal moral principles that have ethical and legal norms that each human should follow, because it’s a rule. He defines legal positivism, that emphasizes conventional nature of law, that has been socially constructed.
You must support your answer with reference to academic and judicial opinion, as well as developing your own argument. There is great difficulty in defining the rule of law despite its unprecedented significance; however, simply in the words of TRS Allan it is ‘a corpus of basic principles and values, which together lend some stability and coherence to the legal order’. Raz and AV Dicey discuss the characteristics of what the law should be in their formal (procedural) definitions, whilst Fuller examines the content and morality of legislature. This essay aims to scrutinise both perspectives whilst questioning the possibility of the rule of law to co-exist in a legally sovereign and or democratic and non-democratic states today. Many argue that the rule of law is outdated and inapplicable to the modern world today.
Without this someone may know what is moral but not have the means to know how to help. Morality in Kantian terms provokes many questions to the ordinary concepts people have placed it in. Having a universal law of morality, free from examples of others is hard to reach for any human being. It is possible for someone to create their own imperative to reach a working set of moral means. Many people could actively use a basic independent concept of morality.
The rest of the paper will focus on the views of John Stuart Mill and how he address the questions of justice to come from a special and unique tendency of nature or whether it can be linked to the concerns of utility. His arguments and presentation on the definition of what is just and unjust are contained in this work. This article will present the argument of John Stewart Mill on utilitarianism as an opposing idea on justice. Mill offered that justice is a sentiment on morality. Accordingly, it will be noted on this work how justice was defined, how others people think about it, how they perceive it as the meaning implies and touches on the topic about rights of the people.