Can the government force a citizen to be free? In The Social Contract, Jean-Jacques Rousseau declares that it is not only possible for the government to do so, but also necessary under certain conditions. In this fashion, Rousseau expects complete obedience to the laws of the body politic. Though this concept is aimed at promoting the democratic principle of equality, it bestows the will of the community with a troubling degree of precedence over individual wills. For this, I argue that Rousseau’s idea of forcing citizens to be free is a dangerous notion.
The moral requirement that I will use to validate legal rules is the Essential Moral Requirement (EMR) of laws. (Explain what EMR entails in footnote) I am also presupposing that in a Modern Constitutional Democracy the EMR is present in the legislative frameworks, with the concession that this may not always be the case. From a moral perspective it may be that civil disobedience is the most radical action that can be taken against individual unjust laws without the disobedience itself breaking moral convictions. As a result it may be the citizens last resort to reforming laws without consciously feeling guilty about it, even if sanctions are (footnote civil disobedience).
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
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
By giving the courts the power to overrule laws that are unconstitutional and allowing them to exercise Judicial Review, they are better equipped at protecting the civil liberties and human rights of society as a whole. Different political parties often have different interpretations of what laws should be in effect, but these laws do not always serve society as holistically as needed. In Federalist 78, Hamilton explains this by stating, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body” (The Federalist No.
This could be due to the structure and formation of such theory. Constitutionalism is often widely used as a scope to distinct constitutional concepts such as democracy, parliamentary sovereignty, the rule of law and separation of powers. In addition, it also includes the idea of legality, fundamental rights and the avoidance of autocratic power. Nevertheless, it implies more than just the idea of ‘legality’ which requires official conduct to be uniform with the pre-fixed legal rules. In lay-man terms, the logic behind constitutionalism is to prevent any abuse of power by the state institutions.
Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy. There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial.
He goes on to point out that the world would only be chaotic if there aren’t absolute monarchs. Hobbes believes man must establish the Leviathan by making a social contract and only then will the world run ideally. He considers the state of nature like the human body; the government being the head and the citizens being the body. The head is in absolute control but the body can still create harm on itself and the head but only if the head allows it. The people (the body) must give consent to the government to have absolute rule.
The rule of law states that all individuals, including institutions must obey the law. In Aristotle’s Politics, he endorsed that, “It is more proper that law should govern than any other citizens.” This is because Aristotle advocates the rule of law against power as those who rule or the citizens could lead to danger of reaching too far of all kinds. As expected, the rule of law completely forbids civil disobedience as it supports the act of disobeying a law. Furthermore, obeying the law is necessary and important for preserving the values found in a democracy, because every political establishment could result in potential enemies of civil liberties, including of the rule of law itself. Civil disobedience is unjust since a democratic government allows for a change as its political order allows its citizens the maximal expression while still supporting the rule of law and human rights.
Unfortunately, these are merely a few reasons why a real moral society has not been realized. Morality is very complex, subject to many differing points of view. While understanding the issues presented here hopefully contributes to better moral practices, there are still many issues facing proper morality. Works Cited MM: Narveson, Jan. Moral Matters.