Open Access Research Article
WHY WE OBEY LAW- POSITIVISM OR NATURALISM BY: RAHUL BHATIA
Published Paper
Article Details
WHY WE
OBEY LAW- POSITIVISM OR NATURALISM
AUTHORED BY:
RAHUL BHATIA
4th
Year B.B.A LL.B. (Corporate Law Hons.)
School of
Law, UPES
CONTACT NO.
– 9729579967
EMAIL ID-
rahulbhatia641@gmail.com
ABSTRACT
This
paper talks about why we obey the law and involves the interpretation that what
makes people obey laws in light of Positivist schools and natural school
scholars. The question of the duty to obey the law is an old question and many
have tried to answer the same in their own capacity.
Whether
we should obey the law is a question that affects everyone’s day-to-day life,
from traffic laws to criminal laws to requirements to pay our taxes. Even if
most people obey unreflectively or out of habit, the question remains: why we
are morally required to do so? If we fail to obey, the state may well enforce
compliance, but is it right for it to do so, and if so, why?
The
objective of this research paper is to undergo those factors that influence
people to follow laws to study the importance of morality and laws in human
life and to understand the role of morality in
restraining people from wrongful acts. To determine why people obey laws and
identify the difference between naturalism and positivism in light of law and
morality and assess the role of two systems in defining the rights and duties
of the individual in society.
The
outcome of this study is that we will explore the positivist/naturalist debate
with the help of scholarly references and would help in a bid to explain why we
obey the law with the help of this study we will try to find out whether people
prefer morality over legal laws or vice-versa.
INDEX
|
S.NO
|
PARTICULARS
|
|
1.
|
INTRODUCTION:
Ø The
Naturalist Perception.
Ø The
Positivism Perception
|
|
2.
|
DO PEOPLE HAVE A MORAL DUTY TO OBEY THE LAW?
Ø Consent
Theory.
|
|
3.
|
WHY ARE MORALITY & LAWS IMPORTANT
FOR THE PEOPLE?
Ø The
importance of ethical behavior.
Ø Natural
law theory of morality.
Ø Natural
law theory of law.
|
|
4.
|
WHAT MAKES OR CAUSES PEOPLE TO OBEY LAW?
Ø When asked why people obey the law,
legal scholars and academics usually give two answers.
Ø Coordination.
Ø Signaling.
|
|
5.
|
Which system provides most powerful
solutions in today’s world?
Ø Naturalism
view- It’s testing as per today’s societal needs.
Ø Positivism
view- It’s testing as per today’s societal needs.
|
|
6.
|
What influence the people more
morality or legal laws?
Ø Law
and Morality.
Ø Roscoe
Pound’s saying.
|
|
7.
|
CONCLUSION
|
INTRODUCTION
The
law is required during a society, for maintaining order, but will that mean, if
there's no law, there'll be no order. What if tomorrow we don’t find any
punishment for committing murder, will it result into people committing murder
everywhere? The solution will surely be a ‘no’.
Is
it some sense, natural humanistic approach towards law or will it only be
supported sanction? Perhaps this is often a division point of thoughts, where
both school of law clashes. Both the edges have a legitimate point to justify
themselves and their arguments. On the opposite side, this is often also true,
that if there's no punishment of murder then there could be a rise in cases of
murder.
So,
will it mean that the essential natural humanistic approach is different for
various people? This difference is where the 2 schools divide. Perhaps it'd not
be faithful much extent in today’s world, which we'll discuss later.
Positivist, often doesn't entails themselves with, what need to be, separating
the ideals from the law, which is why there seems an excellent criticism of
positivist separating law from moral.
The
understanding society without the conception of law and legal doctrine isn't
possible. It explains the laws necessary for the existence of society as
without laws or system the survival of societies is impossible. Bix (2000)
explains jurisprudence as, “the existence of law is one thing; its merit or
demerit is another. Whether it's or be not is one enquiry; whether it's or be
not conformable to an assumed standard, may be a different enquiry.
A
law, which exists, is a law, though we happen to dislike it, or though it
varies from the text, by which we regulate our approbation and disapprobation”
(Bix, 2000). The jurisprudence involves the laws that are essential for the
regulation of society and therefore the people. Without laws, the probabilities
of neglecting duties are more. The laws define the standards that motivate
people to fulfil their duties and responsibilities.
Laws
set the bounds that outline the probated and allowed actions. Jurisprudence is
additionally effective in maintaining the ideology of right and wrong. The
concepts of equality and justice also are relevant to jurisprudence because it
impacts the socio-political aspects. Without laws, people are more likely to
act beyond limits that also confer the thought of disobedience.
THE
NATURALIST PERCEPTION:
The
Natural School advocates the importance of reason behind everything. The
naturalist model do contains valid legal knowledge but unlike the positivist
model, where the legal knowledge is constrained to only what the authority
says, the naturalist will base the legal knowledge justifiably also like
rational awareness and acceptance of the existence of objective values,
standards and norms of proper conduct.
This
factor makes the natural school more appealing, since, it gives us the
presupposition which enables us to deal with all these facts or judgment in an
intelligent manner.
To
moreover, get into the detail, natural school doesn't delve into declaring or
discriminating this system or any legal theory. The main contention being the
element of reason must be complied by, regardless of the legal theory it
discusses.
THE
POSITIVISM PERCEPTION
The
positivists, generally, have always maintained a really clear notion of law,
being limited to what law ‘is’. The primary aim for the positivist is merely
limited to review the law, as it is.
The
law got the very sanction behind it since it's got its validity from the
authority itself. Positivist views this authority, because the only reason to
obey the law, within the famous words of Austin, it being the “Command of the
Sovereign”.
Perhaps
it'd not be faithful to much extent in today’s world, which we'll discuss
later. Positivist often does not entail themselves with, what ought to be,
separating the ideals from the law, which is why there seems a great criticism
of positivist separating law from morality
The
positivists, generally, have always maintained a really clear notion of law,
being limited to what law ‘is’. The primary aim of the positivist is merely
limited to reviewing the law, as it is.
The
law got the very sanction behind it since it's got its validity from the
authority itself. Positivist views this authority, as the only reason to obey
the law, in the famous words of Austin, it being the “Command of the Sovereign”
(1)
DO
PEOPLE HAVE A MORAL DUTY TO OBEY THE LAW?
The
duty to obey the law, or because it is usually called, political obligation,
may be a moral requirement to obey the laws of one’s country. Traditionally,
this has been viewed as a requirement of a specific kind, to obey the law for
the “content-independent” reason that it's the law, as against the content of
particular laws. In characterizing this as an ethical requirement, theorists
distinguish political obligation from legal obligation.
All
legal systems claim to bind people subject to them; a part of what we mean by a
legitimate law is that the relevant population is required to obey it. This
requirement is usually supported by coercion, while those that don't obey are
subject to sanctions. But these aspects of legal obligation leave open more
ultimate questions on the state’s justification for imposing such requirements.
Unless citizens have moral requirements to obey the law, they will be forced to
try, but in compelling obedience, the state is acting unjustly and impinging on
their freedom.
As
H. L. A. Hart argues, the distinctive thrust of political obligations is often
seen within the contrast between being obliged to try and having an obligation
to try it (Hart 1961: 80–88). If a gunman holds Smith up and threatens to shoot
her unless she turns over some cash, she is probably going obliged to surrender
this sum. But by this locution, we mean no over that the alternatives to
complying are significantly unpleasant, which provides her a robust reason to
comply.
As
per Hart, obligation add to the current an inside dimension. While Smith’s
being obliged to try and do p is analyzed in terms of her assessment of the
results of obeying or not obeying, her having an obligation to try. It adds to
those concerns the moral legitimacy of what she is compelled to try.
If
Smith could be a citizen of a legitimate state that needs she pay it in taxes,
once more she could preferably be forced to comply; the results of
noncompliance might be unacceptable to her. But during this case, it's right
that she surrender the cash. If she recognizes the requirement, she's going to
believe it's the correct thing to do—although we must always note that this is
often a clear moral requirement, capable of being overridden by additional
moral considerations.
At
this time, no theory of political obligations is mostly accepted. All accounts
are subject to vigorous controversy. Absence of consensus on moral reasons is
among more basic disagreements about the character of political obligations
themselves and whether a satisfactory account is feasible. At the current time
the dominant position within the literature would be that there aren't any
political obligations within the traditional sense. But this contention too is
disputed by scholars from numerous directions.
According
to standard analysis, an obligation may be a moral requirement that a private
imposes on himself or herself. For example, if A promises B to do, the moral
requirement to try is generated by the act of promising and wouldn't otherwise
exist. But in spite of the label “political obligation,” most scholars argue
that moral requirements to obey the law needn't be grounded in requirements of
this sort. In spite of other disagreements, scholars largely agree a few basic
criteria that a successful theory of political obligation should satisfy.
First, the idea should be general; that's, it should explain the obligations of
all or the majority citizens.
It
should also explain their requirements to obey the laws of their own country.
This criterion is usually remarked as “particularity”. It should be
comprehensive, i.e., explain requirements to obey all or most laws. Finally, as
indicated above, to keep with the overall thrust of liberal ideology, the moral
requirements in question should be of only limited force.
They must bind citizens as a rule, but, as
clear obligations, able to be overridden by conflicting moral requirements.
Other features are discussed within the literature. But these should be
adequate for this essay. Putting these four features together, we may say that
a successful theory of political obligation explains the wants of all or most
citizens to obey all or most laws of their own countries, with these
requirements of limited force.
In
the literature, scholars have attempted to justify political obligations on a
spread of grounds. Within the liberal tradition, arguments from voluntary consent
are traditionally most central. Until relatively recently, the history of
political obligation has been a history of consent.
Additional approaches which will be discussed
during this essay are consequentiality arguments, supported the results of obedience
or disobedience, arguments supported the principle of fairness (or fair play),
which activate receipt of advantages from the state, and arguments supported a
principle of membership or association, and a natural duty of justice. I’ll
examine the strengths and weaknesses of those different approaches and up to
date developments that have called into question central features of political
obligations as traditionally understood.
CONSENT
THEORY:
Although
elements of a consent theory of political obligation are present in earlier
thinkers, the view receives its classic statement in John Locke’s Second
Treatise of presidency. Locke argues that folks are naturally free within the
state of nature. Although the state of nature is governed by concept, within
the absence of an authority to enforce this, Locke subscribes to the “strange
Doctrine” that each one man have the proper to enforce it for themselves.
However, general self-enforcement results in
conflict, and then people are willing to surrender their enforcement powers. They
are doing this in two stages—erecting a community, which then places its powers
in an exceedingly legislative authority. Because people surrender only certain
of their rights, the legislative power is ready to act only in these areas. But
in these areas, individuals agree “to pass through the determination of the
bulk, and to be concluded by it”. Because Locke’s overall purpose within the
Second Treatise is to justify revolution, he's deeply concerned with
limitations on authority.
Although
he doesn't use the word “contract,” he argues that legitimate political
authority is held in trust. When the restrictions are violated, people have
strong rights of resistance, including resistance by single individuals once
they believe “the explanation for sufficient moment”. However, Locke argues
that this right won't cause disorder, as individuals will realize the futility
of acting alone.
Locke
holds that, because people are naturally free, only their own consent can place
them under political authority. It follows that one isn't bound by the consent
of one’s father, or by an imaginative contract made at the inspiration of
society.
However,
although “express consent” establishes clear political bonds, Locke recognizes
that few people actually consent during this way. Thus he turns to “tacit
consent,” which is in a position to bind most or all inhabitants of a given
country. As a result, his theory of political obligations supported consent is
for all intents and purposes a theory of commendation.
(2) WHY ARE MORALITY & LAWS IMPORTANT
FOR THE PEOPLE?
In
the times, morality and law are almost universally held to be unrelated fields
and, where the term "legal ethics" is employed, it's taken to ask the
professional honesty of lawyers or judges, but has nothing to try to with the
possible "rightness" or "wrongness" of particular laws
themselves. This is the result of the lack of some sense of "reality"
about man, as well as the elimination of the concept of natural law. It
destroys any sense of true human rights, renders individuals powerless in the
face of unjust laws, and opens the door to various forms of totalitarianism.
For a person who is open to the facts, this should be obvious; nevertheless,
many people's minds have become stuck in shallow ways of thinking, and they
will not respond unless they are guided step by step to deeper reflection and
understanding. The political, social, and economic relationships in society are
reflected in laws. It establishes citizens' rights and responsibilities to one
another as well as to the state. There has been a discussion about the
relationship between law and morality ever since it was accepted as an
important tool for social order. Law and morality have a common root. Morals
gave rise to rules. Moral laws were sanctioned and implemented by the
government. The term "law" was given to these rules.
According
to Hart “The law of every modern State shows at a thousand points the influence
of both the accepted social morality and wider moral ideal. Both law and
morality have a standard object or end in thus far as both of them direct the
actions of men in such how on produce maximum social and individual good. Both
law and morality is backed by social or external sanction”.
Bentham
said that legislation has the same center with morals, but it has not the same
circumference. Morality is generally the basis of law, i.e. illegal (murder,
theft, etc.) is also immoral. But there are many immoral acts such as
hard-heartedness, ingratitude, etc. which are immoral but are not illegal.
Similarly, there may be laws that are not based upon morals and some of them
maybe even opposed to morals, e.g. laws on technical matters, traffic laws,
etc.
Laws
are usually founded on societal moral values. Both govern an individual's
behavior in society. They have a lot of impact on each other. Good laws, on the
other hand, will help to arouse people's moral consciences and establish and
sustain conditions that promote moral development. In defining certain virtues
that are connected to the common good, the law is linked to morality. This does
not imply that positive human law should prohibit all vices or command all
virtues; rather, it should prohibit only those human failings that endanger
society's very existence, and command only those virtues that can be ordained
by human means for the common good.
Morals
as a test of law: Several Jurists have stated that law must follow morality and
that laws that do not follow morals should be disobeyed, and the government
that enacts them should be overthrown.
THE
IMPORTANCE OF ETHICAL BEHAVIOUR:
Morality
and honesty are essential qualities to show for people, particularly though we
have no plans to pursue a career in law enforcement. We instinctively know that
being virtuous and acting with dignity is a good thing to do, but knowing the
reasons behind these virtues will inspire us to promote them.
Among the reasons to be
moral and integral, regardless of occupation are to:
Ø Treat everyone equally-
Equality is a staple in most
Western economies, in which everyone has the same rights. This would not be
possible until the majority of people act morally.
Ø Secure meaningful employment-
Employers often use a
person's previous behavior as an indicator of potential behavior. Someone with
a history of unethical behavior would have a tough time finding successful work
because they cannot be trusted.
Ø Lessen stress-
When we make unethical
decisions, we appear to feel uneasy and concerned about our choices. Stress is
reduced by making the right moral decision or taking a principled stance on a
subject.
Ø Make society better-
When we contribute to the
betterment of society, we are rewarded with bettering our own lives as well as
the lives of our families and friends. Society would be a miserable place if
moral behavior did not exist.
There are two “Natural Law”
theories about two different things:
Ø A
natural law theory of morality, or what’s right and wrong.
Ø A
natural law theory of positive law.
The
two theories are mutually exclusive, accepting one while rejecting the other is
completely compatible Natural law and legal positivism Theories of positive law
are opposing viewpoints about what constitutes law and how it relates to
justice and morality. Legal positivism claims that the natural law theory of
positive law is false.
NATURAL
LAW THEORY OF MORALITY:
Natural
law is a collection of spiritual and legal truths; it is a set of laws that
must be followed to live a healthy or flourishing life. By using unaided human
rationality, we will figure out what these concepts are. The natural law theory
of morality opposes ethical subjectivism (“all moral opinions are equally
legitimate, rational, and likely to be true”) and affirms ethical objectivism
(“some moral opinions are more valid, reasonable, or likely to be true than
others”). Even things that aren't man-made (like plants, rocks, planets, and
people) have purposes or functions, and the realization of those purposes or
functions is what makes something "good."
NATURAL
LAW THEORY OF LAW:
Natural
law is an ethical and philosophical principle that claims that humans have
inherent principles that control our reasoning and actions. These laws of right
and wrong, according to natural law, are inherent in people and are not
produced by culture or court judges. Natural law asserts that fundamental moral
values exist in humans throughout history and that these standards should serve
as the foundation for a just society. Natural law is not taught to humans in
the traditional sense; rather, we "discover" it by repeatedly
choosing well over bad. Natural law, according to some schools of thought, is
transmitted to humanity through a divine presence. Although law mainly applies
to the realm of ethics and philosophy, it's also used extensively in
theoretical economics.
Normally,
we ask the question around the other way, trying to know what it's that causes
people to interrupt the law. But it's even as interesting and potentially
informative to invert the proposition and consider the explanations citizens
have for staying on the straight and narrow.
WHEN
ASKED WHY PEOPLE OBEY THE LAW, LEGAL SCHOLARS AND ACADEMICS USUALLY GIVE TWO
ANSWERS:
Ø To avoid legal consequences and
sanctions.
This is considered the
economic or instrumental explanation. Under this explanation, the rationale
that I don't jaywalk is because I’m afraid that I’ll be caught and ticketed,
not because I think that there's any validity within the laws against
jaywalking or that jaywalking is inherently wrong. Under this paradigm, people
are viewed as shaping their behavior to retort to changes within the immediate
incentives and sanctions related to following a given law.
Ø It possesses legitimate authority in
their eyes.
This is considered the
sociological explanation. Under this explanation, the explanation that I don't
jaywalk is that I view ordinances against jaywalking as a legitimate exercise
of the state or city's power. Whether or not I knew that I might not be caught,
I’d still not want to interrupt a law.
“These two explanations have
dominated legal discussions for many years. In recent years, however, Professor
Richard McAdams at the University Of Chicago School of law has been developing
new theories about how the law works. Professor McAdams argues that
additionally to deterrence and legitimacy, the law works
"expressively" by allowing people to coordinate and by signaling new
information and beliefs.”
COORDINATION:
According
to McAdams, the law coordinates people by working as a "focal point"
to assist people avoids conflict or other undesirable situations. He gives the
instance of a one-way traffic sign, which “we could imagine working without
sanctions or legitimacy, because you'd be a fool to ignore it.” If you
recognize that people are seeing that sign, you'd want to obey that sign
whether or not you knew that there was no police enforcement, so as to avoid a
head-on collision.
SIGNALING:
Law
works expressively by signaling information about risk or public attitudes that
causes people to update their behavior: “People take the beliefs of others as
input into their own beliefs, and changing their beliefs can cause them to vary
their behavior.”
He
gives the instance of a hypothetical new smoking ban: It may be an indication
from the legislature that the lawmakers believe smoking is harmful; it could
even be a sign from those that there's a rising disapproval of smoking. The
speculation is that a non-smoker would hear about this law and conclude that it
signals a message about the risks of smoke inhalation.
Armed
with this conclusion, a non-smoker is also more aggressive about confronting
and criticizing smokers. Smokers, in turn, might quit so as avoiding
confrontation and criticism, thereby changing their behavior—in conformance
with the law.
(3) WHICH SYSTEM PROVIDES MOST POWERFUL
SOLUTIONS IN TODAY’S WORLD?
This
article will plan to analyze both the situations moving from positivism to
naturalism in its strict sense. Before discussing about the idea of faculty, we
must analyze one distinct situation which will be very helpful for us to know
the difficulty at large. If we assume a situation during which an individual
with no legal training be made a judge.
This
scenario are often discussed by concerning one of the famous article titled
“Two concept of interest: Reflection on Supreme Court’s balancing test”, and
authored by Charles Fried, Assistant Professor of Law, Harvard school of law
published in Harvard Law Review in 1964. Can it's said that system will break
down only due to the rationale that judge is unaware of law?
The
truth is that the system will continue, and therefore the new judge won't
underperform as compared to his colleagues. The reason behind is that the
simple notion that the judge, regardless of what ‘law’ he knows, his position
will reflect the essential natural assumption.
It’s
not that he should be compared with those having knowledge at par but even
without getting compared, the judge knows that he's having an authoritative
“role” to play in a legal argumentative situation that's itself highly
structured.
Hence
indeed, these sorts of various instances do make us retrospect, on whether we
obey law only of its sanction behind it or its just moral reasoning of human
about judging what is good or bad?
There
has always been a trend on both the side to characterize their legal position
by either maintaining as more ‘positivistic’, i.e., the law is what it's and no
deviation must be allowed, or maintain the notion, that law is more
‘naturalistic’, i.e. towards humanistic approach and leaning more towards the
perfect code that drives person forward.
The
positivists, generally, have always maintained a really clear notion of law,
being limited to what law ‘is’. The primary aim for the positivist is merely
limited to review the law, as it is. The law got the very sanction behind it
since it's got its validity from the authority itself. Positivist views this
authority, because the only reason to obey the law, within the famous words of
Austin, it being the “Command of the Sovereign”. Perhaps it might not be true
to much extent in today’s world, which we will discuss later. Positivist, often
does not entails themselves with, what ought to be, separating the ideals from
the law, which is why there seems a great criticism of positivist separating
law from moral.
NATURALISM
VIEW- IT’S TESTING AS PER TODAY’S SOCIETAL NEEDS:
The
supporters of naturalism view it as a law defining the activity of purpose. It
works to resolve the disputes and protects legitimate rights of the people that
function to maintain law and order in the society. Legal neutralists consider
the system because the genuine law that eliminates the problems of injustice
and inequality.
The
ideology of human obligation started with the idea of divine command that
emphasized on the role of nature. The theory explains that folks are obedient
because nature sets limitations and laws that they're unable to avoid. God
ordains individuals to remain on right path and restraints them from what's
wrong.
It
is a natural force ‘morality’ that plays an important role in defining human
roles and duties within the society. The divine command theory explains that no
fore is more powerful than nature that could eliminate the concepts of evil and
sins (Richard & Lefkowitz, 2012).
The
law theory relies on the weather of the universe, attribute and morality. The
law theory emphasizes the moral obligations explaining that laws are good
legislation for creating people of excellent society citizens.
Every
individual has duty to obey laws and perform their role as an honest citizen. Fuller
(1969) defines naturalism as, “legal naturalism is according to either the view
that status depends on moral standards external to the law (the more familiar
“natural law” version of the doctrine), or the view that the moral standards
that outline status are to be found within the character of law itself”
(Fuller, 1969). Natural theorists agree with moral realism as they consider
nature’s law as the strongest force motivating people to fulfill moral
obligations.
To
moreover, get into the detail, natural school doesn't delve into declaring or
discriminating this system or any legal theory. The main contention being the
faculty of reason must be complied by, irrespective of the legal theory it
discusses.
POSITIVISM
VIEW- IT’S TESTING AS PER TODAY’S SOCIETAL NEEDS:
The
legal positivism focuses on the merits and demerits of laws. Law exists
irrespective if the very fact if we like or dislike. Laws add same fashion for
each individual of the society. The positivists, generally, have always maintained
a really clear notion of law, being limited to what law ‘is’. The primary aim
for the positivist is merely limited to review the law, as it is. The law got
the very sanction behind it since it's got its validity from the authority
itself. Positivist views this authority, because the only reason to obey the
law, within the famous words of Austin, it being the “Command of the
Sovereign”. Perhaps it might not be true to much extent in today’s world, which
we will discuss later. Human positive laws remained the subjective
consideration for the political theorist Thomas Aquinas. Positive laws also are
crucial in achieving commonweal that needs deployment of state of power. Legal
positivism represents opposing views to naturalism because the focus is of objectivism
is on objective moral truths.
It
argues that naturalism lacks subjectivity thus it fails to figure in realistic
settings. Legal positivism stresses on determining if the rule is law or not.
Creation of legal obligations depends on valid laws that are capable of
restricting individuals from engaging in wrongful conducts. Having a right to
try to to a particular thing entails having an ethical right. Laws of society
define the legal rights and their impacts on the members of society. While in
case of moral rights one needs to distinguish between right and wrong. Jeremy
Bentham and John Austin are prominent supporters of legal positivism.
Positivism states, “it is nothing but a prediction that if a person does or
omits certain things, he are going to be made to suffer during this or that way
by judgment of the court” (Richard & Lefkowitz, 2012).
The
role of penal laws and judgment of court becomes simpler in controlling
wrongful acts of the people. The courts and those they exist in society makes
it difficult for the people to flee legal laws. Punishments and penalties are
the first motivators restricting them from illegal conducts. The claim that
positivism differentiates between legal and illegal acts results in the social
order.
(4) What influence the people more morality
or legal laws?
There
is a standard fallacy that the crime statistics reflect in how the morality of
the society. Stop here and think twice! The crime statistics reflect first to
which extent the human behavior may be considered to be criminal, i.e. these
figures mirror the criminalization of certain activities. We can legalize
prostitution or the retail sales of alcohol in Sweden then statistics of crime
will look different, not necessarily better. We can change the definition of
the crimes; a broader definition will increase the statistics a minimum of
within the playing period after the amendment.
A
narrower definition and a harder burden of proof for the prosecution will
decrease the statistics, but attention not the criminality. The most fallacious
part of the statement is to pass by the fact that an increase in the statistics
can often reflect a more effective enforcement. The police and therefore the
other authorities have invested many public money during a betterment of the
enforcement. This has nothing to try to to with the morality of the people
living therein jurisdiction.
Think
about the taxation for instance! One can define taxation as a very moral
activity, it is after all about sharing and giving to the people in need, but
also as an immoral activity because a person is dispossessed by his/he
property, property which has been obtained completely during a legal manner. Of
course that some crimes appear to be absolutely horrifying and undoubtedly
immoral, but you as an outsider, as a secondhand listener, you will never know
the whole story. Therefore the biblical story remains wise: Don't throw any
stones on nobody! You might be less innocent than that person.
Law
and Morality:
Ever
since law has been recognized as an efficient instrument of social ordering
there has been an ongoing debate on its relationship with morality.
According
to Paton, morals or ethics is a study of the supreme good. In general, morality
has been defined to include; All manner of rules, standards, principles or
norms by which men regulate, guide and control their relationships with
themselves and with others. Both, law and morality, have a common origin. In
fact, morals gave rise to laws. The State put its own sanction behind moral
rules and enforced them. These rules were given the name law.
In
the words of Hart; the law of every modern State shows at a thousand points the
influence of both the accepted social morality and wider moral ideal. Both, law
and morality have a common object or end in so far as both of them direct the
actions of men in such a way as to produce maximum social and individual good.
Both, law and morality are backed by social or external sanction.
Bentham
said that legislation has the same center with morals, but it has not the same
circumference. Morality is generally the basis of law, i.e. illegal (murder,
theft, etc.) is also immoral. But there are many immoral acts like relationship
between two unmarried adults, hard-heartedness, ingratitude, etc. which are
immoral but are not illegal. Similarly, there could also be laws which aren't
based upon morals and a few of them could also be even against morals, e.g.
laws on technical matters, traffic laws, etc.
Ever
since the revival of the scientific study of jurisprudence the connection of
law and morality has much discussed, but the question isn't yet, and maybe
never are going to be settled. Every sort of opinion has been entertained, from
the acute doctrine held by Austin that for the aim of the jurist, law is
completely independent of morality, almost to the opposite positions, held by
every Oriental cadi, that morality and law are one. Morals as test of law:
several jurists have observed that law must conform to morals, and therefore
the reform the law which doesn't conform to morals must be disobeyed and the
government which makes such law should be overthrown.
Paton
said that if the law lags behind popular standard, it falls into dispute, if
the legal standards are too high; there are great difficulties of enforcement.
Morals as end of law: consistent with some jurists, the aim of the law is do
justice. Paton said that justice is that the end of law. In its popular sense,
the word justice is based on morals. Thus, such morals being a part of justice become
end of justice. The end which the preamble of our constitution tries to realize
is that the morals.
Law
is an enactment made by the state. It is backed by physical coercion and it is
the duty of each and every individual to obey the same with utmost priority.
Its breach is punishable by the courts. It represents the desire of the state
and realizes its purpose.
Laws
reflect the political, social and economic relationships within the society. It
determines rights and duties of the citizens towards each other and towards the
state. It is through law that the govt. fulfils its promises to the people. It
reflects the sociological need of society.
Law
and morality are intimately associated with one another. Laws are generally
based on the moral principles of society. Both regulate the conduct of the
individual in society.
They
influence each other to a great extent. Laws, to be effective, must represent
the moral ideas of the people. But good laws sometimes serve to awaken the
moral conscience of the people and make and maintain such conditions as may
encourage the expansion of morality.
Laws
regarding prohibition and spread of primary education are samples of this
nature. Morality cannot, as a matter of fact, be divorced from politics. The
ultimate end of a state is that the promotion of general welfare and moral
perfection of man.
Roscoe
Pound says:
As
to application of ethical principles and legal precepts respectively, it's said
that moral principles are of individual and relative application; they need to
be applied with regard to circumstances and individuals, whereas legal rules
are of general and absolute application. In the preceding paragraph the points
of distinction between law and moral are discussed, but thanks to these points
of distinction between the two, it shouldn't be gathered that they're against
one another and there's no relationship between the two. Really speaking, they
are very closely related to each other.
In
considering the connection between law and morals much will depend upon how one
defines law. Analytical, Historical, Philosophical and Sociological jurists all
have defined law in their own way and these definitions materially differ from
one another. If the law lags behind popular standard it falls into disrepute,
if the legal standards are too high; there are great difficulties of
enforcement.
CONCLUSION
Naturalism
exhibits limitations thanks to the inherent weaknesses thus proposing
Positivism as a strong model for promoting justice and fairness. When society
discusses the political philosophy, the factors controlling the actions of
individuals have a dominant role.
The comparison
of the legal systems depicts that positivism provides a practical solution to
influence the behaviors of individuals. The concept of punishments and penalty
makes a positive theory more vital compared to naturalism. Nature laws provide
the discretion to the people while the central authority liable for imposing
laws is additionally missing.
Naturalism
states that moral laws are defined by God that folks explore through
scriptures. Objectivity of naturalism does its weakness because it fails to figure
in realistic settings. Positive legal laws, on the opposite hand, are effective
in identifying possible conducts. The compassion between the two school of
thought exhibits the strengths of positivism overpowers naturalism.
Natural
law sometimes lacks the detailedness and particularization of positive law.
Positive law sticks to what the law is and need to be. This ‘ought to’ can have
various expressions in it which could depend on things and person. The ‘ought’
is where the ‘belief’ system starts.
Natural
law indeed stands for reason behind, and it's eminently decent in asserting the
quality of right or wrong. But the matter arises when this expression of
‘ought’ or rather the ‘belief’ is different for various being, there it becomes
necessary to possess an authoritative role and make a law which should be
described under the notion of what law is and not what law need to be.
Theory
of rational choice explains the behavior of humans and therefore the reasons
behind making a choice. The rational choice of individuals relies on the
notions of maximizing happiness and minimization of pain.
The
central claim states that without penalties it's impossible to regulate the
behaviors or eliminate possibilities of wrongful conducts. The fear of
punishment and penalties end in the disadvantage of the folks that encourage
them to avoid harming others. Positivism is additionally significant in
controlling emotions of the people.
References:
Article Information
WHY WE OBEY LAW- POSITIVISM OR NATURALISM BY: RAHUL BHATIA
Authors: RAHUL BHATIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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