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PREFACEREFACE
●
● Law is one of the institutions that allows man to live inLaw is one of the institutions that allows man to live in civilized society
civilized society.. ○
○ Growth Growth of civof civilization hilization has generally as generally been linked been linked with:with: ■
■ gradual gradual development development of aof a system of legalsystem of legal rules
rules ■
■ machinery for machinery for regular regular andand effectiveeffective enforcement
enforcement ●
● Laws do not exLaws do not exist in a vacist in a vacuum but are fouum but are found together witund together withh moral codes of
moral codes of differing complexity or definiteness.differing complexity or definiteness. ○
○ There There isistension between law and moral codestension between law and moral codes.. ○
○ The belief in The belief in a Moral a Moral Law has an Law has an impact on impact on how manhow man sees actual law prevailing in
sees actual law prevailing in his society.his society. ■
■ Moral Law Moral Law is a higher lais a higher law by whicw by which mereh mere man-made laws can be judged
man-made laws can be judged ■
■ Higher laws cHigher laws can override or nulan override or nullify certainlify certain human laws in history.
human laws in history. ●
● The most The most vital issue vital issue of the of the modern stamodern state is te is thethefreedom offreedom of the citizen and its preservation
the citizen and its preservation.. ○
○ Relationship Relationship between law between law and liberty and liberty is a is a close one:close one: either used for tyranny or gives effect to
either used for tyranny or gives effect to freedomsfreedoms ●
● Functioning Functioning of law of law has been has been closely assclosely associated with ociated with the ideathe idea of a sovereign state.
of a sovereign state. ●
● Social scieSocial sciences hold nces hold the key the key to shedding to shedding light on light on the issuesthe issues of legal institutions and rendering modern solutions.
of legal institutions and rendering modern solutions. ●
● The nature of tThe nature of the judicial process mhe judicial process must be studied toust be studied to understand legal reasoning and
understand legal reasoning and development.development.
IISS LLAWAW NNECESSARYECESSARY? A? A DDIALOGUE BETWEENIALOGUE BETWEEN TTWOWO LLEGALEGAL
P
PHILOSOPHERSHILOSOPHERS((BYBYSSOMMEROMMER)) ●
● Aris and Bato, Aris and Bato, two legal philosophers wtwo legal philosophers who seem to beho seem to be representations of Aristotle and Plato
representations of Aristotle and Plato ●
● “What would life be like without law?” → “Is law“What would life be like without law?” → “Is law necessary?”
necessary?” ○
○ Life without any Life without any law would belaw would be unrealistic andunrealistic and exceedingly difficult.
exceedingly difficult. ■
■ Man Man needs law needs law to live to live in socin society.iety. ■
■ Life Life would would be be ““solitary, poor, nasty, brutishsolitary, poor, nasty, brutish and short
and short .” - Thomas Hobbes.” - Thomas Hobbes ○
○ Potshots Potshots against against Lloyd’s Lloyd’s approach:approach: ■
■ Armchair Armchair philosophy philosophy - merely - merely theoretical theoretical andand speculative ideas which do not deal with speculative ideas which do not deal with realities and facts
realities and facts ■
■ Overstating Overstating the humathe human nature n nature argument argument - not- not all men are prone to violence and theft
all men are prone to violence and theft ● Human nature argument supposes ● Human nature argument supposes
that all people are
that all people are static in nature.static in nature. ○ Discussion of representative laws leads to a ○ Discussion of representative laws leads to a
classification of laws: classification of laws:
■
■ Truly necessarTruly necessary laws (indispy laws (indispensable laws):ensable laws): against theft, violence and potential against theft, violence and potential wrongdoers, guarantees private ownership wrongdoers, guarantees private ownership and compensation, redress of harm or and compensation, redress of harm or brokenbroken agreements
■ Improves the quality of life in society ■ Improves the quality of life in society (necessary / useful laws): health, education, (necessary / useful laws): health, education, public safety
public safety ●
● Without these lawWithout these laws, life would bes, life would be wasteful and confusing.
wasteful and confusing. ■
■ Laws with debaLaws with debatable ends, not nectable ends, not necessaryessary (convenient laws): religion, morality, (convenient laws): religion, morality, convenience
convenience ○
○ The extenThe extent of t of man’s freman’s freedom deteredom determines the mines the qualityquality of his life in society. - John Stuart Mills
of his life in society. - John Stuart Mills ○
○ Law Law facilitates facilitates efficient efficient social social change.change. ○
○ Men leaMen learned in rned in law assist law assist the laythe layman in man in knowing andknowing and applying such laws.
applying such laws. ○
○ It is It is not needed not needed that laws that laws are true, are true, but they but they can standcan stand because they are needed.
because they are needed. C
CHAPTERHAPTER1:1: IISSLLAWAWNNECESSARYECESSARY?? ●
● Historically, law has been considered unneHistorically, law has been considered unnecessary bycessary by ideologues and religious
ideologues and religious institutionsinstitutions ○
○ In every In every day and age, day and age, certain groups certain groups feel a cerfeel a certaintain unease when it comes to authority while claiming unease when it comes to authority while claiming thatthat their own denomination points to a
their own denomination points to a happier lifehappier life ○
○ However, However, they are they are not usually not usually able to provable to prove that te that theirheir doctrines are plausible
doctrines are plausible ●
● The Nature of ManThe Nature of Man ○
○ Ideology Ideology
■
■ Forms one’Forms one’s outlook s outlook about the about the world, uponworld, upon man’s relation to society and the
man’s relation to society and the worldworld ■
■ Law has an ideological character Law has an ideological character ○
○ Two Two views views on the on the nature nature of Mof Manan ■
■ Punitive view Punitive view ●
● Man Man as as “demon,” “demon,” intrinsically intrinsically evilevil ●
● Law Law as as indispensable indispensable restraint; restraint; societysociety impossible without law
impossible without law ●
● Punishment, Punishment, not not rehabilitationrehabilitation ■
■ Positivist view Positivist view ●
● Man Man as as “angel,” “angel,” intrinsically intrinsically goodgood ●
● Looks back to a GoldLooks back to a Golden Age ofen Age of primeval innocence and simplicity primeval innocence and simplicity ● Defects arise from problems in ● Defects arise from problems in society, especially law and society, especially law and government
government ●
● Rehabilitation Rehabilitation rather rather than than punishmentpunishment ○
○ The focus of cThe focus of current legal syurrent legal systems is law stems is law reformreform rather than eliminating it completely.
rather than eliminating it completely. ●
■ Improves the quality of life in society ■ Improves the quality of life in society (necessary / useful laws): health, education, (necessary / useful laws): health, education, public safety
public safety ●
● Without these lawWithout these laws, life would bes, life would be wasteful and confusing.
wasteful and confusing. ■
■ Laws with debaLaws with debatable ends, not nectable ends, not necessaryessary (convenient laws): religion, morality, (convenient laws): religion, morality, convenience
convenience ○
○ The extenThe extent of t of man’s freman’s freedom deteredom determines the mines the qualityquality of his life in society. - John Stuart Mills
of his life in society. - John Stuart Mills ○
○ Law Law facilitates facilitates efficient efficient social social change.change. ○
○ Men leaMen learned in rned in law assist law assist the laythe layman in man in knowing andknowing and applying such laws.
applying such laws. ○
○ It is It is not needed not needed that laws that laws are true, are true, but they but they can standcan stand because they are needed.
because they are needed. C
CHAPTERHAPTER1:1: IISSLLAWAWNNECESSARYECESSARY?? ●
● Historically, law has been considered unneHistorically, law has been considered unnecessary bycessary by ideologues and religious
ideologues and religious institutionsinstitutions ○
○ In every In every day and age, day and age, certain groups certain groups feel a cerfeel a certaintain unease when it comes to authority while claiming unease when it comes to authority while claiming thatthat their own denomination points to a
their own denomination points to a happier lifehappier life ○
○ However, However, they are they are not usually not usually able to provable to prove that te that theirheir doctrines are plausible
doctrines are plausible ●
● The Nature of ManThe Nature of Man ○
○ Ideology Ideology
■
■ Forms one’Forms one’s outlook s outlook about the about the world, uponworld, upon man’s relation to society and the
man’s relation to society and the worldworld ■
■ Law has an ideological character Law has an ideological character ○
○ Two Two views views on the on the nature nature of Mof Manan ■
■ Punitive view Punitive view ●
● Man Man as as “demon,” “demon,” intrinsically intrinsically evilevil ●
● Law Law as as indispensable indispensable restraint; restraint; societysociety impossible without law
impossible without law ●
● Punishment, Punishment, not not rehabilitationrehabilitation ■
■ Positivist view Positivist view ●
● Man Man as as “angel,” “angel,” intrinsically intrinsically goodgood ●
● Looks back to a GoldLooks back to a Golden Age ofen Age of primeval innocence and simplicity primeval innocence and simplicity ● Defects arise from problems in ● Defects arise from problems in society, especially law and society, especially law and government
government ●
● Rehabilitation Rehabilitation rather rather than than punishmentpunishment ○
○ The focus of cThe focus of current legal syurrent legal systems is law stems is law reformreform rather than eliminating it completely.
rather than eliminating it completely. ●
Type of Philosopher
Type of Philosopher StanceStance Attributable PassageAttributable Passage 1.
1. Rosseau Rosseau Occidental Occidental NO NO Harkening back Harkening back to to a a Golden Golden Age Age of of idyllic idyllic primitivismprimitivism 2.
2. Legists Legists Oriental Oriental YES YES Good Good ways ways of of man man attributable attributable to to teaching teaching of of rituals rituals andand restraints of penal laws
restraints of penal laws 3.
3. Shastra Shastra Oriental Oriental YES YES Men Men are are covetous covetous and and passionate passionate by by nature. nature. WithoutWithout laws, the world would be a devil’s workshop which laws, the world would be a devil’s workshop which followed the logic of fish
followed the logic of fish (rule of the stronger)(rule of the stronger) 4.
4. Bodin Bodin Occidental Occidental YES YES Man’s Man’s original original state state is is that that of of disorder disorder and and violenceviolence 5.
5. Hobbes Hobbes Occidental Occidental YES YES State of State of perpetual perpetual warfare, warfare, “nasty, “nasty, short, short, brutish” brutish” lifelife 6.
6. Hume Hume Occidental Occidental YES YES Without Without law, law, government government and and coercion, coercion, human human societysociety could not exist
could not exist 7.
7. Machiavelli Machiavelli Occidental Occidental YES YES Men Men are are naturally naturally bad bad and and will will not not honor honor promisespromises 8.
8. Ovid Ovid Occidental Occidental NO NO Golden Golden Age Age where where Man Man knew knew right right and and wrong wrong withoutwithout need of laws (from the
need of laws (from theMetamorphosesMetamorphoses)) 9.
9. Seneca Seneca Occidental Occidental QUALIFIED QUALIFIED NO NO Primitive Primitive man man was was happy happy and and ruled ruled by by the the best best andand wisest rulers. However, the happy society was rent wisest rulers. However, the happy society was rent asunder by avarice / greed.
asunder by avarice / greed. 10.
10. Augustine Augustine Christian Christian Church Church Father Father QUALIFIED QUALIFIED YES YES State law State law and and coercion coercion are are not not sinful sinful but but part part of of thethe divine plan in order to mitigate sin. However, in the divine plan in order to mitigate sin. However, in the Civitas Dei
Civitas Dei , or City of God / a mystical body, justice will, or City of God / a mystical body, justice will rule. Thus, no more need for
11. Aristotle Occidental YES Man has aggressive drives curbed by laws.
12. St. Thomas Aquinas Christian Church Father QUALIFIED YES State is not a necessary evil but a natural foundation for human welfare. Law is a guide for man’s good / social impulses towards the realization of his goals.
13. Plato Occidental QUALIFIED NO Rational harmony ruled over by benevolent philosopher-kings rather than law. Later on, he would recant these statements and agree that laws are necessary inThe Laws.
14. Adam Smith Modern-Day/ Anarchist QUALIFIED NO Laissez-faire economics, where government and law stifled the natural development of society; however, laws protecting property are needed for an efficient free market.
15. Godwin Modern-Day / Anarchist NO Evils of society are not from man’s sinful nature but from the effects of oppressive human institutions. Moral and social norms rather than coercion.
16. Bakunin and Kropotkin Modern-Day / Anarchist NO The state, law, coercion and private property were the enemies of human happiness and welfare.
17. Tolstoy Modern-Day / Anarchist QUALIFIED NO Anarchy based on early Christian communities, non-violence and renunciation of private property
Anecdote 1: The Stolen Waistcoat
All have an equal right to anyone’s property. The colony did not survive.
Anecdote 2: Landownership
A man with a title appears. The colony is sent out and breaks up.
18. Karl Marx Modern-Day / Anarchist QUALIFIED NO Law is a coercive system devised to maintain the privileges of the ruling class. However, creating a classless society will need an interim period where there is total state control over property. Marxism then tended towards coercion rather than abolition of law and state control.
19. Elliot Smith Modern-Day / Anarchist NO Man is whole, kind and well-intentioned. Civilization creates artificial aims which sow discord and envy. 20. Herbert Read Modern-Day / Anarchist QUALIFIED NO Man has always formed groups for aid and needs, however there needs to be harmonious interrelation between and among groups. Anarchists are concerned with such harmony and removing the need for
hierarchies / rulers, not a society without order. Two ways of promoting harmony:
Elimination of economic motives.
Matters to be solved by common sense and innate good will of people
*Only general rules and norms are needed but coercive apparatus of general control must be absent.
21. Sigmund Freud Modern-Day / Anarchist YES Man is not harmless or gentle. Aggressive drives can be suppressed but not totally eliminated. Living among men requires a repression of base instincts.
CHAPTER2: LAW ANDFORCE
● Myth of Anu and Enlil
○ Two gods singled out in reverence ■ Anu
● God of the sky
● Issued decrees which commanded obedience by the fact of having emanated from divine authority ● Obedience as necessity, however
there is no guarantee of automatic obedience
● Symbol ofauthority
■ Enlil
● God of the storm
● Power of compulsion, god ofcoercion ● Executes the sentences of the gods
and leads them in war
○ Myths reflect fundamental human attitudes and purposes
■ Humans need order
■ Order demands two elements:authority and force
■ Lack of authority does not allow public order to flourish
■ Lack of force disallows the universe to enter statehood
■ Order of the universe reflected Mesopotamian society
■ Myths gave acosmological foundation to link legitimate authority with force on Earth ■ The idea of gods using force to impose their
authority is a common feature in less sophisticated stages of religion
● Authority
○ Law requires obedience but not just simple obedience.
■ Not just willing or unwilling compliance ○ The notion of authority entails that some person is
entitled to require obedience of others regardless A A F F AF De jure A-F=Law+Order De facto F-A=Law+Order Rule of law A+F=Law +Order
of whether the particular order of rule is acceptable or not
■ It may be a collective organization, not a person.
■ Peculiar authority or mystique surrounding the person / institution
■ Inspires a feeling oflegitimate subordination ○ What is the source of obligation which is apparently
imposed or assumed to be imposed on the subject party?
■ Preliminary answer: moral obligation. There is a connection between legitimate authority and moral obligation. It imposes a rule which calls for voluntary adherence by virtue of inherent rightness. Moral duty to obey the law because the law represents legitimate authority.
● Problem: Carrying the argument too far may lead to erroneous belief that legitimacy and morality can be equated. E.g. divine right of kings ● Rebellion: discrediting of leaders as
immoral; establishment of a social contract
○ Max Weber’s ideal types
■ Not a historical evaluation of societies or a Platonic ideal but arepresentation of full
development of possibilities in social organizations
■ Typological / classificatory , rather than developmental
■ Simplifications in which sociological investigation can be conducted
■ Societies can have characteristics of one or more of these “ideal types”
■ Forms of authority or legitimate domination
● Charismatic
○ Charisma – Greek for “grace” ○ Personal ascendancy which
an individual may acquire in a particular society which confers an indisputable aura of legitimacy over all his acts ○ Prototypes: Julius Caesar,
Alexander the Great, Napoleon, Hitler, Stalin, Mussolini
● Traditional Domination
○ While charismatic leadership lies on a single person, his death does not necessarily extinguish charisma
○ Authority derived from the personality of a leader may pass on to an attenuated form (e.g. descendants of a royal line, from Jesus’ apostles to the Catholic Church)
○ Institutionalization of practices, continuity
○ Mass traditional customs that are binding
○ Restricts the freedom of the actual king in office
○ “The king under the God and Law” (Bracton)
● Legal Domination
○ A more developed form of traditional domination
○ Misleading term in the sense that it suggests that law only arises in this type of authority ○ Charismatic leadership also
may have rules (e.g. Justinian’s codification of Roman Law)
○ Traditional domination have rules, but they are customary rather than legislative.
○ Legal domination, is different, however, because it is impersonal and legalistic . Institutional character of authority has displaced the personal one.
○ Modern democratic state has largely abandoned charismatic leadership in favor of government having a monopoly of authority .
○ This belief in legitimacy is one that the modern state requires to exist. It is a circular argument: laws are legitimate when enacted, enactment is legitimate if it conforms to rules that prescribe procedures to be followed. ■ Necessary legal argument / fiction in order to
assure a functional society.
○ Authority rests firmly in belief in its legitimacy. ● Force
○ Societies may exist with no authority but ruled solely by force without descending into anarchy.
○ However, the state of war of upheaval does not persuade one to treat the law as force incarnate
○ Coercion seems to be necessary and is personified by important institutions and persons
○ Moral arguments against force
■ Force / violence is wrong in itself and a law that ultimately rests on force offends morality ■ Force is thevery negation of law and its use
indicates thebreakdown of the rule of law ■ Problem:
● Moralists only see moral law as the only law
● Lack of establishment that morality excludes coercion
● It must be proven that law has an actual relationship with morality ○ Another argument against force stems from a
misunderstanding of the operation of law
■ Force is only incidental procedure, not necessarily essential to the existence of the law
■ Social contract as a necessary legal fiction ● People obey because ofconsent , not
coercion
● Replaced byuniversal suffrage where individuals can adhere to the operative system of government ■ Elimination of coercion as an element of law
and replacing it with voluntary consent / acquiescence
■ Law can exist in its own right regardless if force is used
○ Force in International Law
■ Force is a less pronounced practice in international law
■ Laws are not enforceable by coercion because there is a lack of regular enforcement
■ Efforts for enforcement and coercion are sometimes frowned upon on the international scale (Suez, Belgian Congo, Nicaragua) ○ Legal Theorists and Force
■ Anti-coercionist position: Law can only be described in terms of authority
■ A comprehensive conception of law must recognize the interplay between authority and force
■ Law is ahighly flexible conception
■ Coercion is not an “ideal” type or an oversimplification, however, categorizations are needed for study
■ “Ideal types” are not seen in reality, but only in a Utopia as a limiting concept.
■ There are infinite gradations of force, from blood-feud to contempt of court
■ Legal Theory requires a dynamic rather than a static approach to force in law.
■ Human society would not have flourished if not for a measure of organized coercion ■ Aristotle: Man is arational, political animal
but he hasaggressive drives which must be repressed to attain social discipline.
■ Freud: Aggressive drives can be suppressed but not totally eliminated. Living among men requires a repression of base instincts. Man cannot get rid of these drives but it is unlikely. Instead, societies are built on coercion and instinctual renunciation. There is a connection between coercion and civilized society
■ De Maistre: Civil society is founded on the hangman
● Rules about Force
○ Laws of developed states: close and efficient regulation of force
○ Attempt to overshadow force with authority by a return to charismatic leadership
○ The view that force only becomes incidental is a “fatal illusion”
■ Modern society has a massive organized force that has a monopoly in the use of violence.
■ State apparatus must be so big and undefeatable that others will not dare resist it.
■ Only certain individual persons and institutions have such powers (e.g. the President, police, military-industrial complex) ○ The use of force requires that certain procedures
and standards are met to safeguard the people. ○ Not all rules should have penal consequences,
considering the tendency of modern society towards defining duties without corresponding sanctions. CHAPTER3: LAW ANDMORALS
● Relation between law and morals is far from simple ● Law and Religion
○ Divine origin and sanctity of laws
○ Law, morality and religion wereinevitably interrelated ■ Lawgivers are mythical, semi-divine or heroic ■ The divine origin of laws lent authority to them ■ Moral duty to obey the law
○ Human penalties still existed. If humans could not punish the crime, the divine would.
○ Polytheism offeredflexibility in administration of justice. One god may punish, one g od may stay punishment. ○ Monotheism introduceda stern, inflexible Divine Will
where squabbles of gods would not mitigate the full force of law. The whole of the law did not necessarily come from the divine. Distinctions were made between fundamental, unchanging laws and man-made laws
Aspect HEBREW GREEK
Form of religion Monotheistic Polytheistic
Language / mode of
transmission extraordinary charisma and passion for divine willProphetic writings. Prophets are those with Oracles, priests
Divine Law Imperative, obligatory and punitive Fate, mysticism did not affect human laws Human Law May be decreed by kings and prophets anointed by
God. In case of conflict with divine law, the latter shall govern.
Man-made laws may not always be reasonable or valid. They must be subject to a higher law of reason. Its validity is not subject to divine stipulation What is law? Law is simply the moral / religious law set down by
God through the prophets. Law is a reasonable command needed for society toflourish. Focus of the law Irrational and mystical, a matter of faith Rational order of the universe, ascertainable by
rational investigation; human reason Dangers Obscurity of language, persuasion, limitless
interpretation leads to either rigid orthodoxy or anarchy
----Moral Duty to Obey the Law If a law is immoral, it does not have to be obeyed.
God has the last word r egarding law and justice. Illustrated in the
Apologia of Socrates in Plato’s Crito: law, even if contrary to reason, must be
obeyed.
Man agrees to the rules laid down by the state. If he should break them, he must face the punishment laid
down in the law. Obedience to the law of the state is the highest morality. Moral law does not override state law. Citizens, should however, move to amend
Relation of Law to Morals
o It appears that the Greeks
prevailing opinion the modern wo who argue that the duty to obey importance.
o Hegel: the individual is treated a higher reality of the state, who could hardly be expected to persuasion of an individual citize or that its courts were unjust or state itself represents the ve morality
his philosophy has prove
in relation to later totalitari
o The limitations present in cases
in conflict with the provisions of p
the overriding moral duty
the law until persuasion about legislative changes
there may still be extre
the law dictates acts immorality
the moral duty i
rather, than obedi
are nearer to the rld. There are those the state is of prime submerged in the se superior wisdom be open to the that it was in error, immoral, since the ry embodiment of to be so influential ian doctrines
where morality was ositive law might to be to obey is effective to bring e situations where of such patent s that of rejection,
nce to the law
Intersection between law
where there is common gr kind ofidentity
o this is only two-dime
Law and morality reinfor
as part of the fabric of socia
o Moral codes, by rec
to refrain from such which equally forbid
o the moral duty to ob
and plays an imp authority of the law
o similarity of normati
both lays down tha that”
dangerous i
law must obligation
and morality is misleading -ound between the two, there is nsional portrayal
e and supplement each other l life
ognizing that we ought generally acts, supplement the force of law
them
ey the law is generally accepted, ortant role in establishing the
nd ensuring obedience to it e language that each employs
-it is “my duty to do this or do the sense that it connotes that necessarily connote moral
Where Law and Morals Diverge
o Example : the law may condemn/punish sexual
immorality but there is a moral duty to save/preserve life
o The law shrinks from pursuing what may
nevertheless be recognized as the authentic path of morality
o Higher ethical attitude may not be sufficiently
embodied in popular sentiment to be productive of legal action in conformity with it
only a small part of the population who have
the moral force to produce sufficient change in popular sentiment
this brings the spread of more human moral
sentiments and standards
o Law deliberately prefers to abstain from supporting
the moral rule
machinery is too cumbersome
more social evil may be created than
prevented
John Stuart Mill : law should not intervene in matters of private moral conduct more than necessary to preserve public order and to protect citizens against what is injurious and offensive; there is a sphere of morality which is best left to individual c onscience
Criticism: criminal law depends for its effectiveness on incorporating moral
standards and without its influence, enforcement of such laws may get weaker
An Example from Modern Divorce Law
o Until 1969: grounds were based on matrimonial
offense (e.g. adultery, cruelty, desertion)
o Divorce Act of 1969 - sole ground was to be the
irretrievable breakdown of marriage
o It was difficult to set a test or standards to determine
whether the spouses should be allowed to divorce
it instructive to compare cases where a
decree has been granted applying a test
o One of the aims of legal process -> general uniformity of result in cases of similar kind
applying various criteria to actual cases
coming before the courts
in the process, rational principles are
gradually developed which can be applied in a multitude of differing situations without sacrificing any substantial measure of justice
o Society is provided with a more subtle and sophisticated means of bringing the law into contact with the needs of current morality
The Ladies’ Directory Case
o The publisher of booklet giving information as to the
addresses, telephone numbers, and other particulars of various prostitutes was held guilty of conspiring to corrupt public morals
14
o House of Lords : role of court as custodian of public
morals and its duty to preserve the moral welfare of the state
it is up to the jury to ascertain the
requirement of public morals
Crime and Punishment
o if the law were to confine itself to a more limited
sociological objectives
eliminate moral judgments from criminal law protect society and reform the prisoner
o Morality impinges upon law:
“guilt ” is linked with the idea of moral responsibility ; morals reinforce the authority of the law and duty to render obedience to its decrees
“responsibility ” in law - excluding the possibility of guilt if there exists some circumstances of excuse which causes us to adjudge the accused not morally implicated in the deed which constitutes the offence
“mens rea” - guilty mind; entails a
certain mental element
Circumstances which negative this
mental state may relieve the accused of legal responsibility (exempting circumstance)
punishment to be inflicted - by
eliminating moral responsibility, a
more rational form of sentencing policy can operate
Compromise: retaining conception
of guilt and responsibility in relation the actual commission of the offense, but eliminating it from the consideration of punishment
removes the burden of determining
the degree of punishment and its possible psychological effects to the convict
but would have to regard the
protection of the public - if his release would involve serious peril to other members of the public, the court is required to detain him
release of the prisoner depends on
the level of danger he brings to the public
if this would be effective, then criminal
law would be transmuted into an inquiry into the facts of a particular crime and the social, mental and other aspects of the background of the accused person, thus removing the notion of responsibility
Conflicts Between Positive Law and the Moral Law
o Three main attitudes which may be adopted towards the
possibility of such divergence between law and morals
Law and morals necessarily coincide either because the moral law dictates the actual content of human law
first alternative:moral law is valid and that
nothing which does not conform
to the moral law itself can be properly
regarded as effectively binding law
second alternative:morality really means
nothing more than obeying the law (Hobbes)
man-made law and the moral law each
enjoys a realm of its own but moral law is a higher law and thus provides a touchstone for the validity of merely man-made law
autonomy of each of the spheres of law
and morality as exclusive, so that neither can resolve questions of validity save in its own sphere
CHAPTER4: NATURALLAW ANDNATURALRIGHTS
Idea of two laws—one resting on human authority and the
other resting on natural or divine origin—has a long history and is still a prevalent belief
Meaning of Nature
o In early society and early forms of civilization, no distinction was made between the natural world and the world of human beings
o No distinction between natural physical laws and
decrees by gods and their representatives
Gods or supernatural spirits direct everything
in the universe
Nature as both inferior to and subject to the
latter’s control
Nature, at best, is how things or people may
normally be expected to be or behave
o Few people attained an approach to nature differing
to the abovementioned
Chinese did not arrive at the notion of fixed
physical laws of nature governing the universe but rather, relied on the idea of harmony
Chinese demonstrates that if the idea of the will of gods as perpetual and capricious force diminishes status of nature vis-à-vis the supernatural
Chinese outlook places nature upon a pedestal
New approach
o Emphasis on nature may be connected to
Judeo-Christian monotheism to combat capriciousness of divine rule
o Nature as afixed order and one which was entitled
to reverence since it was God-given
o God could thus be conceived as adivine lawgiver Possibility of scientific approach to laws
as fixed principles governing the physical world
No clear demarcation between unchangeable order of nature laid down by God and pattern of human conduct equally laid down to all eternity
Early Greek Philosophers
o The scientific approach to nature also received a
vital contribution from the so-called pre-Socratic philosophers
Main objective of pre-Socratic thinkers was to
explore the world of nature in order to find some principle governing the universe which would explain its structure or functioning
o Belief in rationalism, idea that the universe is
governed by intelligible laws grasped by the human mind, arose
Man’s nature is dictated by his instinct and law curbs such instinct like man’s sexual urges
Plato and Aristotle
o Plato’sidealist philosophy
Justice as represented by the laws amount to no more than a pale shadow of real justice
Justice asstatic and law and government as rigid and inflexible
Plato has moved far from the position of his master Socrates with his reverence for the laws of the native land
o Aristotle’snaturalist philosophy
Aristotle gradually rejected the idealist philosophy of Plato
Aristotle advocated for the development of the realms of knowledge relying on observation and experience
Nature as the capacity for the development which is inherent in particular things
For Aristotle, justice may either be conventional, or varying from state to state, ornatural, that is common to all mankind
o Platonic and Aristotelian treatment of natural law and
natural justice are of particular relevance up to the present time
Plato: nature as an ideal expressing the fundamental aspiration of man if his full potentialities are attained
Nature as ideal standard
Law or justice as ideals
Aristotle: nature as the way man behaves by reason of his psycho-physical make up
Nature as fact or what man actually is
Stoic Philosophy
o History of natural law owes a great deal to stoic philosophy arising after Aristotle
o Stoicism stressed theuniversality of human nature Emphasis on reason as the essential
character of humanity
Universal law of nature ascertainable by reason provided standard for justice and man-made laws
o Idea of a common law applicable to all mankind
clearly afforded some concrete shape to the rather abstract Stoic conception of a universal law of nature
Christianity and Natural Law
o Judaic view of law was that itrepresents God’s will on Earth
Early Christians however, were taught to despise things of this Earth and to expect the destruction of this world for the coming of God’s kingdom
Hence, while Earthly rulers had to be obeyed , Earthly laws were mere civil arrangementsto address man’s sinfulness
o At the same time, Christian writers recognized that
even in an imperfect world, there was a need for justice asdecreed by God
Justice as an inferior of that ultimate divine justice
o Link between natural law and Christian theology increased natural law authority compared to the older Stoic law of nature
Natural law was nowimposed by God
Idea that mere human law is subordinate to natural law
Mechanism now exists for people like the
Pope to expound on natural law and require kings and emperors to recognize such
Aquinas and Scholasticism
o St. Thomas, under influence of Aristotle’s position
that man achieves natural development in a political society, rejected the notion that law and government were rooted in sin and therefore necessarily imperfect
o Dichotomy of divine law only known through revelation and natural law known through rational unaided human reason
o Scholastic philosophy was a highly rationalistic
one that relied heavily on truth as elicited by logic and deductive reasoning
But at the same time, its premises were not chosen on rational grounds but were given by the beliefs of Christian theology
o Aquinas set the pattern of modern natural-law
thinking by construing natural law as not a system of rules which covered the entirety of human affairs
There are cases of which the law provides and there are some where it is needed to be morally indifferent
o Human law was fully reinstated as entitled a major role in human government by filling the gaps of natural law and developing further the implications of natural law in the intricacies of human relations
Aquinas did not address cases of conflict
between natural and human law but he seemed to think that obedience was still needed in order to avoid scandal
Renaissance and Secular Natural Law
o The Reformation, with its emphasis on national
Churches controlled by the state, led to a secular revolution
o New age may be regarded as theGolden Age of the
law of nature where emphasis was placed on the rational character of natural law
Unique quality of man in reason and the rational element is shared by all mankind
International law should govern international relations under this perspective
o Human law should give effect to natural law and
incase of conflict natural law shall prevail
Natural Law and Natural Rights
o After the Renaissance, the notion that man
possessed certainfundamental rights in a state of naturegained currency
These rights were translated intocivil rights in a civil society
Locke:social contract gave power of rulers and government rooting from theconfidence given to them by the people, granted that rights of the people are upheld
o In the past, natural law was conceived asimposing duties and prohibitions but now it was asource of fundamental democratic rights
Constitutions of democratic countries brought
actual machinery of the recognition of rights in law as legal rights
Rousseau: general will as natural law and sole unfettered legal authority but these
enabled recalcitrant leaders to seize power claiming he represented the general will
Modern Approaches to Natural Law
o Theories of natural law: Catholic, philosophical, and sociological
Catholic- neo-Thomism
Philosophical - neo-Kantianism (we should always act to the norm of conduct so that our acts shall be translated into universal law)
Sociological - factual approach; attempt to apply scientific method to elicit data of man’s fundamental drives and urges
Post-war Revival of Natural Law
o Nazi rule and International Tribunal at Nuremberg
revived the call for a higher law than national laws which a natural law approach may address
It is in this century of anti-rational ideologies
such as Nazism and Fascism, that rational faith in natural law re-assert itself
Relevance of Natural Law to the Modern World
o Incorporation of Bill of Rights in Constitutions o Suspension of a judicial decision if it is contrary to
natural justice
o Recognition of ahigher system of justice to avoid
conflict in international relations
o Natural law to aid in cases of legal predicaments
CHAPTER5: LEGALPOSITIVISM
Physical and Normative Laws
o Positivist approach may be traced to the Renaissance with its emphasis on the secular studies ofscience and humanism
Empiricism associated with observationas a means of ascertaining the laws of science influenced every field
Clear demarcation betweenlaws of physical nature and normative laws of human conduct
Before, theological background of natural law interpreted both physical and moral laws as traceable to God’s will, effectively blurring their distinction
‘Is’ and ‘Ought’
o Hume pointed out that there are really two realms of
human inquiry:
Field of facts- what is actually the case
Field of ought - what ought to be the case; normative
o Hume’s discussion was principally concerned to distinguish between fact and moral obligation o What the law does is to lay down norms of
conduct for citizens and to indicate what sanction should or ought to follow
Different from moral norms since law calls for a certain measure of regularity and observance
Moral rules on the other hand, shall be valid even if it is hardly observed like the rule that we should love out neighbors as ourselves
o Hume, who rejected natural law, made various
suggestions as to the way in which human passions come to create moral norms
The Utilitarians
o Behavior of mankind was dominated by the influence
ofpain and pleasure
o Utility as what served to increase human happiness
o Bentham’s principle was aimed at maximizing
human happiness according to the slogan, ‘the greatest happiness of the greatest number ’
o Bentham rejected natural law which was for him nonsense upon stilts
His arguments in favor of utility were based on the fact that human reason could find no rational justification for preferring one course to another
Ironically, Bentham’s principle that one man’s happiness was equal to another man’s owed to the widely established ‘natural’ right of equality
Move to Legal Positivism
o Utilitarianism provided the climate for the move to
legal positivism through:
Firm distinction between law as it is and as it
ought to be
Tendency to treat law as a science deserving to be ranked with the other sciences both in its aims and its methods
Law as it is and as it is ought to be
o Bentham linked his discussion of morals in terms of
utility with the firm conviction that law could only be properly understood if it was treated as an autonomous field free from morals, religion, etc.
Natural law as mythical and muddled thinking
by confusing legal with moral issues
o For Bentham, the question of goodness and badness
of a law was to be adjudged by his great principle of utility.Law reform operates under this principle.
o Legal duty does not cease to be a legal duty
because the citizens are persuaded of the moral immorality of the duty
Whether he chooses to comply or obey is a question for his own conscience
Legal positivist will see apartheid as formally valid but condemn on moral grounds
o Positivist attack natural law idea as it creates a
prescribed inherent quality to laws which form a barrier to law reform
The Judge and His Conscience
o The legal positivist would submit that the judge’s
legal duty toapply the law to its letter and spirit is clear
If he was persuaded of its moral
unconsciousness, then his moral duty is conflicted with his legal duty and he should then presumablyresign
As in the example of an anti-Nazi judge in
Germany or anti-Apartheid judge in Africa, a man may, in fulfilling his legal duty, knowingly be acting contrary to the dictates of morality
Law as a Science
o Word ‘positivism’ was devised by French
philosopher Comte to designate his own particular philosophic system
Belief that adequate knowledge could be attained only by employing the scientific method or investigating reality by observation and subjecting its theories to empirical investigation
o Comte argued that there were three steps in the
development of man’s approach to the world
Metaphysical
Positivist
o Unfortunately, at the end of his life, Comte
abandoned his work
o Scientific spirit also infiltrated arts and literature
Austin’s ‘Science of Positive Law’
o Austin was mainly impressed by the fact that law
operated through asystem of conceptual thought
Austin’s aim was to examine such conceptual system, its structure and fundamental notions
o Austin had many followers who continued hispurely conceptual attitude toward legal theory
The ‘Conceptual’ Approach
o Criticisms:
Treatment of legal concepts as possessing an inherent structure regard developments of law that do not adhere to such structure as illegitimate
Treatment of the conceptual approach that legal problems can be solved by means of logical analysis disregard role that policy plays in arriving legal decision
Conceptual approach focused on
second-order facts such as rules of law, cases, and law books whichdisregard first-order or
primary facts consisting of behavior of legal officials, judges, and others in relation to legal rules
o The scientific jurist cannot ignore the fact that there
isbuilt into the law seeds of its own development on the lines of some value system
Where Positivism stands Today
o Usually associated with disbeliefin the possibility of finding an absolute standard or norm outside of the legal system itself
o Attack on positivism launched today in two ways: Legal positivism by its refusal to
acknowledge an absolute higher morality controlling legal validity, has made it possible fortotalitarian dictators to bend laws
Absolute moral values do exist and can be demonstrated to exist by various means
o On the whole, the positivist shares a rationalist approach to the moral values of his society rooted in European ethical thought
o The positivist prefers to concentrate on studying the values that are inherent in our present stage of civilization rather than postulate absolute values
Consequently, the lawyer needs to understand the value system of his
society in order to wrestle the problems which arise in the legal system
CHAPTER6: LAW ANDJUSTICE
Idea of law has always been associated with the idea of
justice
o Law without justice is amockery,acontradiction o Values embodied in laws of a community, strive
towards justice
What is Justice?
o Justice in itself is a moral value that man aims
towards in order to attain the good life
What is ultimately good is amatter of choice
Platonic Justice
o Man is a reflection of thepattern of the just society Man acts according to his idea of a just
society
o Justice means conforming to one’s proper sphere Plato’s system is based on the fallacy that
each man fits a specific job or function based on his natural aptitude
Formal Justice and Equality
o Modern legal and moral philosophy treats equality as
the vital function of justice
Law applied without discrimination may be regarded as embodiment of justice
However, justice cannot mean that we are to
treat everyone alike regardless of inherent differences
o Formal Justice: equal treatment in accordance with
classifications laid down by rules
Formal justice is lacking in that it does not tell
us about how people should or should not be classified
o Formal justice involves three related conceptions: Rules on treatment of people in given cases
Generality of rules
Impartial application of rules
Substantial Justice
o To achieve substantial justice, formal requirements
of justice need to be supplemented in two ways:
Concrete Justice: criteria to establish whether rules are themselves just; possibly through a scale of values in cases the gravity of two values are debated upon
Equity: quality of fairness; possibly through giving discretionary power to judges to decide individual cases under the spirit of equity as applied in deciding penalties in criminal law
Legal Justice
o Justice is a much wider conception than law and
may apply wherever there is a code of rules, legal or non-legal
o Law and legal system corresponds to all three
precepts of formal justice namely, rules, their generality, impartiality
o A certain measure ofcoherence and regularity is a
vital feature of any legal system but no exact standard can be laid by which this measure is to be judged
Legal Injustice
o 3 distinct types of cases which injustice in relation to
law may arise:
Case decidedcontrary to what the law lays down
Case is unduly administered contrary to impartiality
Case is judged according to formal justice but against substantial justice
o In the abovementioned cases, an unjust law is a
perfectly intelligible conception which conflicts with the scale of values which we choose to judge it
o Formal justice, like law itself, may fail to result in
substantial justice
Law and Substantial Justice
o It is not enough for a system of law to comply with
formal attributes as it also needs j ust content
o Two ways in which a legal system may attain not just
formal but substantial justice:
Flexibility in rules- to allow law to adapt to needs of the society
More specific guidelines- will work well in a country with a long tradition and fairly homogenous population i.e. Art. II of the Constitution
CHAPTER7: LAW ANDFREEDOM
● Introduction
○ Law as paradox:means of directing and imposing restraints upon human activities
○ Rousseau: “Man is born free; yet everywhere he is in chains”
■ The savage man lives a life of primitive freedom and simplicity, but
■ In practice – as Rousseau realized – man is never isolated and free in this sense but always part of a community, and the degree of freedom he enjoys or the extent of the social restraints imposed upon him will depend upon the social organization of which he is a member.
○ Restraint is not necessarily an encroachment upon liberty.
○ Ancient times:inequality, rather than equality, was regarded as the fundamental law of human society. Freedom was a guarantee of security in the station of life in which Providence had placed him
○ Modern times: freedom has assumed a central position and a more positive function in the scale of values set up as the operative ideals of a genuine social democracy on the Western pattern.
● Open and Closed Societies
○ Open society – wide field left for personal decision and for assuming of individual responsibility, e.g. Western democratic society
○ Closed society – Almost tribal or collectivist pattern where the community is completely dominant and the individual counts for little or nothing, e.g. Totalitarian society such as that of the Soviet Union or the former Nazi Germany
○ Note: there are developments even in Western society in the direction of a more collectivist society
■ increasing role of the state in matters concerning social welfare
■ increasing conformity in patterns of social behavior and discouraging what are regarded as individualist aberrations
○ Marxist argument: without control of wealth and the pattern of its distribution, the genuine scope of equality and individual initiative remains extremely limited.
● Positive and Negative Freedom
○ Positive freedom –spiritual conception, implying some kind of maximum opportunity for the ‘self-realization’ of every individual to his f ull capacity as a human being.
○ Negative freedom – concerned with organizing the pattern of society, that despite the restraints and limitations that are placed upon individual action for
○ the benefit of the society as a whole, there remains a large sphere for individual choice and initiative as is compatible with the public welfare.
○ As far as legal freedom is concerned, the emphasis is on guaranteeing the maximum degree of ‘negative’ freedom. Attempts have been made in modern society to try to give effect to those values which are regarded as enshrining freedoms which modern man has come to accept as an indispensable feature of ‘the good life’.
● Basic Human Rights
○ Distinctivelynatural-law origin
○ 2 outstanding contributions of the constitution makers of the United States and the early judicial interpreter of the constitution:
■ The idea of expressing in the written constitution what were accepted as the fundamental legal human rights of the citizens
■ Marshall doctrine: it was for the courts (ultimately the Supreme Court) to determine the scope of these constitutional provisions. He laid down that the court was bound to treat these rights as ‘overriding’ in the sense that any legislation or legal rulings or decisions which
disregarded them were to be treated as invalid.
○ Attempts in more recent times to express in asupra- national form the basic human rights which are regarded as the legal entitlement of all human beings:
■ Universal Declaration of Human Rights of 1948
■ European Convention of Human Rights ■ Declaration on the Rule of Law sponsored by
the International Commission of Jurists in 1959
● The Main Values Expressed in Legal Freedom ○ Expanding /Contracting Rights
1. Equality and Democracy (E)
recognition ofequality before the law principle of non-discrimination in regard to
such matters as colour, race or creed
2 important lessons from the point of view of
the relationship of law to society:
i. rules of law which are note expressive of the mores or standards of conduct which prevail in a given community are likely to remain dead letters through passive or even active resistance of the citizens.
ii. if law is to be an effective focus for giving expression to fundamental values, it cannot merely reflect the common level of morality; it must be regarded as a positive directing force, which can be used as an instrument of social progress, i.e. an ‘enlightened’ minority leading the ‘recalcitrant’ majority.
2. Freedom of Contract (C)
Laissez faire, where one had the right to
make his own contractual arrangements, led to startling abuses by corporations.
The counter move in favour of state control
started with the legislation against monopolies and restrictive trade practices.
The rise of trade unions in recent times
transformed the character of industrial relations, e.g. equality of bargaining power.
The widespread growth of ‘standard-form’
contracts has further exposed the unreality of freedom to contract.
3. The Right of Property (C)
Power of the state to tax seemed to involve
an encroachment upon the right to property
Reconciliation was found in the principle that
taxation was permissible provided that
there was consent , i.e. taxation was authorized by a duly elected representative legislature
At the present day, the level of taxation is at a
height which in previous ages would have been regarded asconfiscatory .
Inroads that have been made on the right to
property:
i. Nationalization of whole industries ii. Control on the uses that land and
buildings may be put to
iii. Powers of compulsory acquisition enabling authorities to acquire land from private owners
iv. In Soviet Russia, protection of private property is only to articles of personal use (not the means of production or land)
4. The Right of Association (C)
Right of various types of groups: social,
political, economic, or any kind to organize themselves and conduct their affairs
This extends to the right of business
enterprise to organize itself and how far it may be legitimately restrained in order to protect the public against monopolies, restrictive practices, or fraud.
Right of labour to organize itself in trade
unions to deal on a collective basis with employers.
Right of people tohold public meetings, for
the purpose of making protests or attempting to influence public opinion and so forth.
The state has a right to preserve public
order and this may frequently clash with the right of holding protest meetings, e.g. in England, owing to the outbursts of Fascism in the 1930s, it was found necessary to pass the Public Order Act of 1936, preventing the wearing of unofficial uniforms in public places and imposing restraint on the use of abusive language at public gatherings.
5. Freedom of Labour (C)
This right in modern times has mainly
developed in relation to the trade union organization of labour.
Legal restraints on the freedom of labour:
i. England’s Industrial Relations Act of 1971 (established the National Industrial Relations Court)
ii. Trade Union and Labour Relations Act of 1974 (repealed the Industrial
Relations Act)
iii. Compulsory or semi-compulsory arbitral procedure of a judicial or quasi-judicial character in US, Australia, etc.
What is really at stake is the ability of a group
of workers to hold to ransom not only a whole industry but even the whole economic life of the country.
6. Freedom from Want and Social Security (E)
The need to protect everyone, not merely
against grinding poverty, but also in the enjoyment of a reasonable standard of life whether in or out of employment.
Need to spread the risks of misfortune
among the community as a whole, rather than allowing them simply to affect the particular victim of misfortune (as opposed to the Victorian philosophy of self-help).
7. Freedom of Speech and of the Press (C)
Fundamental value in any community
where democratic and egalitarian values prevail, for without these, the possibility of developing and crystallizing public opinion, and allowing it to be brought to bear upon the governmental organs of the state, is bound to be ineffective.
Freedom of speech can hardly be
absolutely unrestricted e.g. a law of defamation, sedition, obscenity
Freedom of speech and of the Pressusually
implies an absence of initial censorship, subject to any possible legal action thereafter ensuing
A substitute is found inself-censorship
i. Difficulty: ultimate limits of tolerance which may be required by the established value of freedom of speech
Greatest significance of censorship at the
present day is positive.
i. Against the danger of various organs of public opinion to fall increasingly into a very few hands by reason of newspaper mergers and take-overs
The Press clearly retains a central position in
mass media because of itsunique capacity for serving as a focus of public opinion.
What seems to be unproved is that there is
any necessarily overriding public interest which entitles journalists to complete immunity as to revealing their sources of information, although no such immunity is enjoyed by anyone else.
8. Freedom of Religion (C)
The exact implications of this doctrine may
appear in a very different light in different communities. Under the US Constitution, no established religion is permitted, whereas in England and established religion is an essential part of the constitution.
The main aspects of freedom of religion
which are apt to arise nowadays are:
i. Discrimination against religious groups
ii. Religious schools
iii. Specific teachings of religious faith (e.g. Mormons encourage polygamy, Christian Scientists may refuse medical aid)
The law generally declines to regard
religious groups as being entitled to any special degree of immunity from legal regulations
9. Personal Freedom (C)
Although personal freedom may easily be
ranked as supreme among the freedoms of a democratic society, it is not easy to find specific applications which do not more readily fall under other headings of freedom, e.g.
i. Need for ‘due process of law’ form essential elements of the ‘rule of law’ ii. Freedom to take up any employment
is linked with the freedom of labour iii. Choice of residence has to do with
economic resources, though the state can do much to provide suitable homes
iv. Restrictions on the freedom to travel also raises issues on personal freedom, e.g. passport requirement, extradition
10. The Rule of Law (E)
The Rule of Law is herein referred to in its
narrower sense, as imposing those procedural guarantees which have been found necessary to ensure what in American constitutional practice is known as ‘due process of law’
This involves:
i. Independence of the judiciary
ii. Speedy and fair trial and adequate judicial control over police and
methods of securing confessions iii. Adequate safeguards regarding arrest
and detention pending trial
iv. Adequate legal aid for those with insufficient financial resources to obtain suitable legal defence
v. Accused being entitled to refuse to make statements that mayincriminate himself
vi. Those charged with duty of advocacy must be free and independent , not subject to any state pressure
vii. Noretroactive legislation
viii. A person is only answerable for his own wrongdoings and not to be punished simply because he is in some way connected or related to the guilty person (referring to criminal liability, not civil liability for acts of his servant or agent)
The scope of the modern rule of law is not
limited to cases of safeguarding accuse persons, but also has a wide and important sphere of operation in regard to the exercise of state and governmental powers, i.e. rules of administrative law which enable either the ordinary courts of law or some special tribunals to exercise supervision over administrative or quasi-judicial functions of the executive. These provide the system to
