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Relationship between law and moral standards
The linkage between law and morality
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This module focused on how law is influenced by values, morals and ethics as well as how we justify the legitimacy of law. Law must constantly try to create a balance between consistency and flexibility and must be flexible enough to adapt to the challenges presented in a modern society. We began the class with a discussion of the influence of values in the working of law, learning that natural law is derived from theology and based on morals and ethics. Law operates in context and there are multiple ideologies and belief systems that influence the way we perceive certain ‘neutral’ issues and which solutions we then propose. However, whilst there are different schools of thought in legal theory, ultimately law has the task not of determining who is right in a case but what is the most feasible outcome according to legal principles.
The task for this module described a situation in which a housemate of ours, Angelika, developed an addiction to drugs. Angelika received a package from the local drug dealer but as she was not home the package was left with us, the decision falling upon the different members of our student household to decide what to do with it and how best to confront the situation. Every member of our group had a different approach to law, depending on personal values and biases. Our group discovered that these personal beliefs affected the way we viewed this situation and what our solution to this situation would be differed because of this. The exercise taught us that there will always be a range of people with a range of different opinions and with a way of looking at the facts that will be different from our own. Our personal beliefs shape our actions but it is imperative that we form an argument that is inheren...
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...levant and important details. Our groups found that we needed deductive reasoning and an eye for detail in finding new facts and patterns that would assist us in solving the problem. I found this exercise challenging and had problems completing it, finding it difficult to discern the necessary facts. I discovered that I am not a particularly logical person, something that I need to work on as a helpful life lesson and particularly if I choose a career in law. To rectify this I realised that I needed to develop better organisational skills and practise critical thinking, starting with practicing reading articles and gleaming their meaning by taking notes and highlighting relevant facts and details as well as organising my notes in a neat and systemic fashion. This will assist me in my studies but also in dealing with the intricacies and complications present of law.
In Douglas N. Husak’s A Moral Right to Use Drugs he attempts to look at drug use from an impartial standpoint in order to determine what is the best legal status for currently illegal drugs. Husak first describes the current legal situation concerning drugs in America, citing figures that show how drug crimes now make up a large percentage of crimes in our country. Husak explains the disruption which this causes within the judicial system and it is made clear that he is not content with the current way drugs are treated. The figures that Husak offers up, such as the fact that up to one third of all felony charges involve drugs, are startling, but more evidence is needed than the fact that a law is frequently broken to justify it’s repeal.
David Dyzenhaus and Arthur Ripstein, eds. Law and Morality: Readings in Legal Philosophy. (University of Toronto Press, 1996).
Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Beauchamp, T. L.(2003). A Defense of the Common Morality. Kennedy Institute of Ethics Journal 13(3), 259-274.
At first thought, we associate laws as prohibited activities and lawyers as people who have high quality suits and expensive brief cases. However, law is not nearly as simple as it appears to be on the surface. There has been no time within human civilization where law was not present. Implementation of laws can be recalled back to New Testament times in the Bible where murder was a condemned crime that would be punishable by death. Law is defined as the principles and regulations created by a community or some authority applicable to its people. If we did not enforce laws or punishments, how many more crimes would be committed on a daily basis? In this paper, I will be discussing what Criminal law is, its historical contributors and its
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.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
Law is the framework which applies to members of the community and sets the binding values and standards recognized by its subjects. It regulates their behaviour and it reflects the principles ...
William O. Douglas said, "Common sense often makes good law." Well that is what laws essentially are, rules and regulations that make sure common sense is followed. One could even say that laws are enforced ethics. Laws serve several roles and functions in business and society, and this paper will discuss those roles and functions.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...