law and morality

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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. I propose Bentham’s theory is the greatest workable theory in a modern constitutional democratic society and consequently I will argue that we should obey the law with reference to Bentham’s guidelines.

Law and morality

Law is generally difficult to define as it emerges from so many sources and fulfills so many functions and different branches in a society. Yet it is objectively evident that the general purpose of law is to order society by means of prescriptive rules. Hobbes addressed the need for law and described a state of nature, ruled by instinct. He elaborates where society exisits without order the people would become extinct. Hence the people would willingly sacrifice their unlimited freedom to achieve protection from their fellow citizens.

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...

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...ith concerns regarding Bentham substantiate that Bentham’s theory is the most congruable under the circumstances. I nevertheless will briefly rebut this critism of democracy as one needs to acknowledge individuals make up the majority.

Conclusion

Extreme interpretations of either theory are unworkable. Natrual law as an absolute would facilate chaos and disorder as “sacred laws” would justify all actions. Similarly positivism devoid of values could present catastrophic consequences as it justifies Natzi Germany and other political agenda’s. Thus the objective need for law must endorse citizen’s to obey the law and in the context of a modern democratic society Bentham’s theory is the most congruable as in a constitutional democracy majority of the people have voted and elected their sovereign democratically and the purpose of law is protected by the Constitution.

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