PoliticalPhilosophy-LawJusticeandOrder

8/13/2019 PoliticalPhilosophy-LawJusticeandOrder

1/4

Law is one of the fundamental elements of any human society, with some degree oflegislation forming integral parts of human communities from time immemorial. In

essence the function of aw is to tell people what they can do, while laying down whatthey cannot do. The tree important themes to be discussed are firstly the origins and

purpose of law, secondly the concept of order in law, and finally the relationshipbetween law and justice.

Law

Simply defined as a means of enforcing norms or standards of social

behaviour, however political theorists see it more of a distinctive socialinstitution above norms and social behavioural standards.

Law constitutes a set of rules, devised by government that are to take

precedence over all the other so called rules that dictate and influence day to

day life.

Law is compulsory they must be obeyed, a system of punishment and

coercion is employed by the government to ensure that they are indeedobeyed.

Law has a public uality, in that it is a published set of rules that arepresumed to be known by all.

Laws are considered to be binding upon those to whom they apply.

The !ule of Law

" constitutional principle that is applied to its fullest in the liberal democracies

of global society. It simply means that everybody is subject to the laws of the

state, and it is regarded as a tool for the protection of the rights of theindividual.

#rawn up by #icey, the following points are the ape$ of this philosophy.

%. &o one should be punished e$cept fro breaches of the law.'. (ual subjection to the law euality of all before the law.). *ertainty of punishment when the law has been broken.

+. !ule of law reuires that the rights and liberties of the ppl are embodiedin the law of the land. Thus the people can ensure that when the law is

upheld, so are their fundamental rights.

In a number of respects the ritish system is that one that least adheres to the

principals put forward by this philosophy. In itself the notion of parliamentarysupremacy violates the very essence of the rule of law. The establishment of

effective of rule of law in the - will reuire the codification of the constitution and

the introduction of a bill of rights as well as a more distinct separation of power.

In its broader sense the !/L is just outline of constitutionalism and limitedgovernment, the seemingly desired goals of modern liberal democracies. It limits the

powers of the state ands establishes patterns of legal activity, such as the non0retrospectivity of legislation.

1


2/4

&atural and 1ositive law

!elationship between law and morality.

Law and morality are prima facie very different entities. Law prescribes what can and

cannot be done, while morality outlines what should and should not be done.

1lato felt that beyond the ever changing aspects of social interaction there

were unchanging archetypal forms which only the philosopher kings could be

aware of. "ristotle also thought along such lines in that he felt that there wasa perfect law fi$ed for all times and this would be the basis of citi2enship and

all other social interaction.

Thomas "uinas also thought of this moral basis behind all human laws,

which would serve as the path to the attainment of the good life on earth.

The e$pression of this natural law is based in the e$pression of natural rights,

invested in man by 3od or nature. Locke felt that it was mankind4s duty toprotect these rights.

Today it is widely accepted that there is an element of moral principles that

should guide the formation of legislation, even on the international spectrum.

This principle was attacked by the notion of positive law.

5obbes felt that 6law is the word of him that by right hath command over

others7.

There was a belief that law was law because law was obeyed.

5art attempted a modern interpretation of this principle, in his The *oncept of

Law, where he suggested that law stems from the union of primary and

secondary rules. 1rimary rules regulate human conduct while secondary onesregulate what powers can be used by the powers that run the country.

&atural law theories were criticised for being too philosophical while positive lawthreatens to tear law away from morality e.g. 5obbes said that man should obey lawno matter how oppressive. &atural law theorists seek to establish what law is and

what it should be, while positivists treat these matters as utterly distinct from oneanother.

Law and Liberty

Important issue when discussing law is the issue of individual liberty and the balance

between those moral choices that should be made by the individual and those thatshould be decided by society and thus enforced by law.

8ill4s proclaimed 6over himself, over his own body and mind the individual issovereign7. " fierce commitment to individual liberty, faith in human reasonand the e$ercise of choice.

ut unrestrained liberty would damage society. #evlin argues that there is a

public morality which society has a right to enforce through the law. /ne

should not enforce laws that the majority are against was his keynoteobservation.

2


3/4

!egardless morality is simply too important to be left out of the law and up to theindividual. 9here the interests of society and the interests of the individual disagree

the law must always take the side of the former.

Order

:ear of disorder and social instability is an underlying theme in 9estern politicalphilosophy. *onservatives feel that man is prone to descend into anarchic mess if notregulated by stiff controlling legislation. "narchists feel that if left to their own

devices men would find a natural harmonious balance.

#iscipline and *ontrol

/rder is linked to the ideas of discipline regulation and authority. Social order has to

be imposed as it does not occur naturally. It is the notion of disorder and chaos thatprompts us to resort to order, as a means of necessity. 5uman beings are

intrinsically corrupt, and subseuently must be controlled and coerced intobehaviour.

5obbes in Leviathan described the principal human inclination as 6a perpetual

and restless desire for power after power that ceaseth only in death7.

*onservatives declare that social order is a fragile balance that reuires a

strong entity to keep alive. If any part is damaged the whole is threatened.

Thus there is the need for traditional institutions like family and respect for

established culture based up custom religion and tradition.

&atural 5armony

" 1opular view among socialists and anarchists. They believe that social order cantake the form of spontaneous harmony, regulated by the natural good sense of

individuals themselves.

!ousseau felt that man is not born corrupt, but they are corrupted by society

itself. 5e said 6man is born free but everywhere he is in chains.

Socialists argue that one of the fundamental cause of crime is the severe

social divides that are brought about by capitalist systems. They argue that

social order can be applied into a system that emphasises social solidarity inan easier way, as opposed to one founded on competition and selfishness.

;ustifying punishment

1unishment has a moral character that distinguishes it, thus it must be justified in

moral terms. Three types of such justifications have been defined throughout time.

%. Idea of !etribution to punish wrongdoers is not merely to treat them asthey deserve to be treated, but also it is necessary to e$press the revulsion of

society towards their crime. It advocates an 6eye for an eye, tooth for atooth7 approach to punishment. Society has a moral obligation to kill a

murderer to demonstrate its abhorrence for the act he committed. " moreprimitive approach to punishment.

'. the #eterrence theory this is more concerned with harnessing punishment

in order to deter others from committing the same crime. The general

3


4/4

prevention ought to be the chief end of punishment as it is its realjustification. It aims to deter people from crime by making them very aware

of the conseuences should the resort to crime. #eterrence theory may justifyfar harsher punishments that retributive justice in order to make an e$ample

of a wrongdoer. , or on the other hand there is a prior knowledge of what is justas the outcome is generally foreseen =as in court of law>.

:ormal euality law should operate fairly for all, regardless of gender race

etc?.this in itself reuires law to be impartially applied, which can only be done byan independent judiciary.

Substantive justice

Legal process may generate injustice not because the procedure is unjust but

because the law itself is unjust, the content of the law must be judged in the light of

a principle of substantive justice.

#evlin said that there is a distinction between laws@ *onsensus laws and &on*onsensus laws. The former conform to commonly held standards of fairness and

justice, the latter are regarded as unacceptable or unjust normally reflected inwidespread non0conformity to such law.

5e does not say tit is justified to defy such law, but he does state that the continuedenforcement of said law will bring the judiciary and legal system to disrepute.

4

Documents

PoliticalPhilosophy-LawJusticeandOrder