According to Mill, liberty should not be enforced by law as any imposing would lead to breach of individual liberty. On the contrary, Devlin claimed that if society has the right to make judgments it can also use the law to enforce it. He said that society does have a right to use the law to preserve morality in order to safeguarding social morals. Further Devlin said that the law is not looking for true belief but what is commonly believed by individuals in a civil society as a whole. He said that the judgment of the “right minded person” will prevail and immorality would be something which the those people will consider immoral.
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
He argues that the moral law applies to us because of the very nature of our finite rational will. If this is true, then we must view ourselves as the authors of the moral law, and consequently reject any maxims inconsistent with the autonomous moral law. In nearly every other, non-moral system of laws governing humanity, the laws and their authority come from an external source. The only reason we obey such external authorities is some other interest, not any inherent value. For example, the state in which we live creates laws that are binding on us.
He rejects any conceptual separation between law and morality. Instead, he argues that moral reasoning is required to determine what the law is in any legal system. He also rejects the ‘sources thesis’ which asserts that all law is source based, contrary to Hart and Finnis. Dworkin conflates the question of adjudication with the question of legal validity, equating ‘law’ with ‘what judges are obligated to apply’. This is contrary to legal positivism, which holds that in ‘hard cases’ when the law runs out, judges must exercise their discretion by reasoning morally in order to make new laws.
Morality is the distinction between behaviors of right and wrong. It pertains to conduct that can be of serious consequence to human well-being. Although morality takes priority over other competing standards, its soundness is contingent on the adequacy of supporting reasons. On the contrary, the law is a legislative system that underlies a body of rules and rights. While morality allows for personal choice, the law does not.
If something is immoral should it also be illegal? In America, we should not pass laws where the primary concern is morality; we should only pass laws which have civil values as their primary concern. Civil values in this case are values which either ensures the safety or order of a society, such as, traffic laws or zoning laws. Also involved are more important values such as freedom, democracy, and liberty which have been laid out by our founding fathers. I have two basic reasons for holding this view.
In a democratic society, it is generally considered the Government's role to promote morality and justice within its citizens and seek to restrict supposedly immoral and unjust acts. Thus if an act is to be considered immoral, it seems obvious to suggest that the government is justified in restricting it regardless of whether it is harmful to others. However, since everybody has a different understanding of morality and freedom, no Government could legitimately restrict an act on the basis of it being 'immoral'. Thus it seems more plausible to suggest that the Government should only restrict actions which everybody can agree should be restricted. However it's not clear where the line should be drawn or how a consensus on the issue could be reached.
However, Martin disagrees on Kant’s “pure respect for the moral law in acts of duty”. Martin’s belief is that it is essential to autonomy that emotions and personal ideals play a part in duty ethics. Martin thinks that it is too cold and clinical in a way that emotions have no part in Kant’s principles. Relating to Martin’s beliefs, Kantian ethics says that involving too many emotions blurs the lines of duty ethics and because of this paternalism and becoming too involved and too attached to a patient is a result. This is why there are rules to follow, because personal ideals get in the
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. Therefore the formal theory of the rule of law engenders to unjust situations which may be justified if good procedures are implemented when making the law. Nonetheless, Raz upholds the notion that the substantive theory is inadequate as
With so many conflicting moralities in our various cultures, which of them when transgressed leads to sanctions. Rape is bad and is a crime, but adultery is also bad, and in the eyes of certain religious groups a worse transgression, but it is not a... ... middle of paper ... ...ed would place us all in jeopardy. There is a greater wrong being punished than the loss of a video recorder. To steal is morally wrong. But society´s sanction against crime is its self only moral if the crimes are committed with free choice.