To describe these two sides of law specifically there is positivism and the natural law theory. The positivism theory simply states that law is law, that it is not dependent on morality. It will be law whether it is good or bad law and it will be obeyed until is changed. Jeremy Bentham stated “that it is what law is and ought to be even if it is ‘bad’ it is still undeniably law” The utilitarian theorist didn’t completely reject the idea or morality in law as it is believed that the creation of law is still influenced by morals. It is said that this idea gives lawyers a clear structure on applying the law whereas taking a moral view causes confusion.
Dworkin argues that society values political integrity for its own sake because of the resulting ability to have internal harmony without direct compromise. Under the acceptance of political integrity, he claims that political society becomes a special form of community that promotes its moral authority to assume and deploy a monopoly of coercive force. He promotes the view that the community should be seen as a distinct moral agent in that the social and intellectual practices that treat community that way ought to be protected. With political integrity integrated as an imperative aspect of the law, these practices are accepted without refuting our instincts through internal compromises, such as checkerboard solutions.
The question of the exercise of discretion by judges remains to be answered. The question in this essay is not about how new laws should be created, but rather about how judges should go about with interpreting laws. This essay will focus on two approaches of law; namely, Formalism and Realism. Formalism in interpretation separates law from other related concepts such as politics and morality; this means that they should apply legal rules in exclusion of their subjective opinion. Realists are mostly about the nature of judicial decision-making.
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.
This theory is concerned with procedures, it focuses on the way the law is created and applied, proposing that the rule of law is upheld in a situation when good procedures are followed. As Lord Bingham suggested, this theory cannot be regarded as observing the rule of law, as citizens human rights are disregarded if good procedures are followed in the process. Joseph Raz puts forwards his formal theory of the rule of law, stating that; “All laws should be prospective, open and clear”, any vague areas of the law are likely to result in a breach of the law. Laws are also required to be “relatively stable” and to not undergo continual changes which will ultimately result in civilians being unaware of their boundaries and legal limits within the state. Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard of “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law.
There was no longer an external view of the legal system, as all law is man-made by the Parliament and thus a new theory was needed to understand and replace natural law. This was coherently put together as the ‘Pure Theory of Law’ by Hans Kelsen (1967), who has argued for the existence of a system of norms that binds judges. Thus, the fundamental assumption of legal positivism is that there is no room for the interpretation of law and judges are law-bound. Nevertheless, this notion of legal positivism has and is still being argued. The importance lies with the epistemological views that underpin these theories.
Martin Luther King Jr. believes there are two specific types of laws: just and unjust. Just laws are ones in which humans must obey in order to maintain the safety, equality, and freedom of the individual. He states that “one has not only a legal but a moral responsibility to obey just laws.” Justly, these laws benefit society and are intended to align with the moral conscience of the human being. On the other side “one has a moral responsibility to disobey unjust laws” as, according to St. Augustine, "an unjust law is no law at all.” Unjust laws are simply a moral mistake in the governmental system that require being broken, whether that be through civil disobedience or simple negotiation to prompt the change. The way in which one determines
In defence of the school of legal positivism Introduction Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather than some unwritten rules or personal opinion of judges that may be based on some ethical and moral principles. In this regards, the separation of law from morals as maintained by positivist thinking may contribute to the neutrality and objectivity
Marx, Weber, Durkheim, among many others including the most contemporary feminist scholars, all acknowledge that the law essentially relies on social fact. Therefore, stating that the existence of law depends on facts alone and not on its merits is a relation thesis and not otherwise a thesis about the individual relata. Hence, most traditional ‘natural law’ include beliefs in an objective morality, as they do not contradict legal positivism (L. Green, 2003, Stanford Encyclopedia of Philosophy, Legal Positivism). Moral theories: the view that moral norms are valid only if they have a source in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law (L. Green, 2003, Stanford Encyclopedia of Philosophy, Legal
(Reference in bibliography) Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. According to him Englishmen were ruled by the law and by the law alone; a man with us may be punished for breach of law, but can be punished for no... ... middle of paper ... ...ference in international law. "Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life." (Reference in bibliography) The European Court of Human Rights held in the Malone case, that the English practice of interception was insufficiently grounded in law to allow it to be justified. Conclusion In summary, constitutionalism forms an institutional foundation for the rule of law, strikes a proper balance between the rule of law and the rule of person, provides a minimal guarantee for the justice of both the content and the form of law and, finally, is itself safeguarded by the rule of law.