What Is The Primary Function Of Law?
- Marvin Harvey
What is the primary function of law? The law serves many purposes and functions in society. Four principal purposes and functions are establishing standards, maintaining order, resolving disputes, and protecting liberties and rights.
Which function of the law is most important?
Function and purpose of law in society – Anarchy can pretty quickly take over in the absence of law. Societies are capable of taking an uncivilized turn if there are no legal consequences enforced on the actions of people. Below are some fundamental functions that law fulfills in a Society:
Laws are created, essentially, to keep the citizenry of a country, out of harm’s way. Hence, the crucial function and purpose of law are to keep the citizens safe and sound. This is accomplished by maintaining order in society. Thus, the legal system is designed to uphold order in the land. Law protects individual rights and liberties, enabling individuals to fight for and receive equal opportunity. Laws function to establish standards within the society. The law guarantees protection to individuals from any unfair discrimination based on gender, race, religion, or economic condition. Under the law, all citizens of a nation are considered and treated equally. Another major function of the law is to resolve conflicts among people concerning their rights and obligations. Contract law, for example, governs the behavior or norms that people have to adhere to enter into a contractual relationship with each other, where they perform duties for one another and/or receive certain rights from each other. Common-Law exists to serve some collective purpose for society as a whole. It is because in a world with finite resources, not everyone has equal access to the essential resources, creating a natural disparity. People may try to hoard resources. Therefore, laws are put in place to ensure that the common good prevails and wealthy individuals are not allowed to unilaterally control essential resources.
What is a function in law?
Legal Function means the department or a person nominated in the Company or in a Member of the Group to provide legal support to the Company’s or such Member’s of the Group activity.
What are the three functions of the law?
This article was published in the Summer 1994 issue of Formulations by the Free Nation Foundation The Nature of Law Part II: The Three Functions of Law by Roderick T. Long (to table of contents of FNF archives) (to start of Part II) Outline (all four parts) Part I: Law and Order Without Government – Introduction – Varieties of Law – Public Goods vs.
- Public Choice Part II: The Three Functions of Law – Why Three Functions? – Should Law Be Monopolized? – Locke’s Case for Monocentric Law – The Lockean Case Against Locke Part III: Law vs.
- Legislation – Socrates on Law – Two Senses of Law – Natural Law and Human Law – Natural Law and Customary Law – Law vs.
Legislation: Documentary Evidence Part IV: The Basis of Natural Law – Is There Room for Natural Law? – Who Has the Burden of Proof? – Objection One: Natural Law Serves No Useful Purpose – Objection Two: There Couldn’t Be Such a Thing as Natural Law – Objection Three: Even If There Were a Natural Law, It Would Be Unknowable – Objection Four: Evolutionary Explanations Make Natural Law Obsolete – Notes – John Locke on Natural Law (to top of page) (to top of outline) Part II: The Three Functions of Law Why Three Functions? The purpose of a legal system is to provide a systematic, orderly, and predictable mechanism for resolving disagreements.
In order to do its job, any such system must perform three closely connected, but nevertheless distinct, functions: adjudication, legislation, and execution. The judicial function is the core of any legal system. In its judicial function, a legal system adjudicates disputes, issuing a decision as to how the disagreement should be settled.
The other two functions are merely adjuncts to this central function. The purpose of the legislative function is to determine the rules that will govern the process of adjudication. Legislation tells judicial function how to adjudicate. The legislative process may be distinct from the judicial process, as when the Congress passes laws and the Supreme Court then applies them; or the two processes may coincide, as when a common-law body of legislation arises through a series of judicial precedents.
- Finally, the purpose of the executive function is to ensure, first, that the disputing parties submit to adjudication in the first place, and second, that they actually comply with the settlement eventually reached through the judicial process.
- In its executive function the legal system may rely on coercive force, voluntary social sanctions, or some combination of the two.
The executive function gives a legal system its “teeth,” providing incentives for peaceful behavior; both domestic law enforcement and national defense fall under the executive function. (to top of page) (to top of outline) Should Law Be Monopolized? With regard to these various functions, there are three primary ways in which a legal system may be constituted: Absolutism : The three functions of law are concentrated in the hands of a single group of decision-makers.
Constitutionalism : The three functions of law are monopolized by a single agency, but distributed among distinct groups of decision-makers within that agency. Anarchism : The three functions of law are not monopolized. Various combinations of these are possible, since there are legal systems under which some functions are monopolised while others are not.
For example, in the Icelandic Free Commonwealth, the legislative function was monopolized by the All-Thing ( althingi ), or General Assembly; the judicial function was shared between the Thing courts and the private sector; and the executive function was privatized entirely.
This is why the legal system of the Icelandic Free Commonwealth cannot easily be classified either as a pure government or as a pure anarchy. Most of us have been taught to regard Constitutionalism as the best of the three options. Concentrating the three functions in a single agency avoids the chaos allegedly endemic to Anarchism; while assigning the three functions to distinct sub-agencies within the monopoly agency allows the three branches (legislative, executive, and judicial) to serve as checks on one another’s excesses, thus avoiding the potential for abuse and tyranny inherent in Absolutism.
This is the “separation of powers” doctrine built into the U.S. Constitution. In practice, however, Constitutionalism has proved only marginally better than Absolutism, because there has been sufficient convergence of interests among the three branches that, despite occasional squabbles over details, each branch has been complicit with the others in expanding the power of the central government.
- Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.
- To top of page) (to top of outline) Locke’s Case for Monocentric Law In his libertarian classic Two Treatises of Government, the 17th-century English philosopher John Locke offered one of the most famous cases ever made for the monopolization of the three functions of government.
Locke believes that all human beings are naturally equal, so that in their natural state each person has as much right as any other to exercise the various functions of law:
“Man, being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property that is, his life, liberty, and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others, as he is persuaded the offence deserves, each being, where there is no other, judge for himself and executioner,” (II. vii.87.)
This egalitarian distribution of political authority, Locke argues, is required by justice unless individuals voluntarily relinquish their authority to a government. However, Locke thinks that people living in a state of anarchy will find it rational to set up a government in order to gain greater security:
“If man in the State of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of an other power? To which it is obvious to answer, that though in the State of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name property. The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the State of Nature there are many things wanting.” (II. ix.123-124.)
Locke then goes on to list what he sees as the three principal defects of the state of natural anarchy. Although he does not point this out explicitly, the three defects appear to correspond to the three functions of law that I have been discussing, and I have labeled them accordingly:
“Firstly, there wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them. For though the Law of Nature be plain and intelligible to all rational creatures, yet men, being biased by their interest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding them in the application of it to their particular cases. Secondly, in the State of Nature there wants a known and indifferent judge, with authority to determine all differences according to the established law. For every one in that state being both judge and executioner of the Law of Nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat in their own cases, as well as negligence and unconcernedness, make them too remiss in other men’s. Thirdly, in the State of Nature there often wants power to back and support the sentence when right, and to give it due execution. They who by any injustice offended will seldom fail where they are able by force to make good their injustice. Such resistance many times makes the punishment dangerous, and frequently destructive to those who attempt it.” (II. ix.124-126.)
Locke concludes that these three defects may be remedied by centralizing the legislative, judicial, and executive functions in a constitutional government. (to top of page) (to top of outline) The Lockean Case Against Locke I think Locke’s arguments for a monocentric legal system contain a serious confusion: the confusion between the absence of government and the absence of law.
- Locke’s arguments are good arguments for a formal, organized legal system; but Locke mistakenly assumes that such a system requires a governmental monopoly.
- The majority of legal systems throughout history, however, have been polycentric rather than monocentric.
- Locke did not have the benefit of our historical knowledge however; nor, despite his brilliance, was he able to imagine on his own a legal system that was not a government.
The actual history of stateless legal orders shows that they do not noticeably suffer from any of the three defects Locke lists; on the contrary, those defects are far more prevalent under governmental law. Consider first the judicial defect: the worry that, in the absence of common authority, each individual would have to act as a judge in his or her own case, with all the problems of bias and partiality that entails.
- Locke is correct in thinking that submitting disputes to impartial third-party arbitration is generally preferable to acting as one’s own judge and jury (except, of course, in emergency cases in which one must act quickly and no such impartial judge is available).
- But such third-party judges will always be available, whether or not there is a government.
There is a widespread tendency to suppose that if something is not supplied by the government, it cannot be supplied at all; I call this “the invisibility of the market.” (The problem with invisible hands is that you need libertarian lenses in order to see them whereas everyone can see the visible hand of government.) Polycentric legal systems have always had plenty of third-party judges, from the relatively formal Moots of early Anglo-Saxon law (in which disputants were judged by their peers on the basis of local custom) to the relatively informal arrangements of the American frontier (in which each disputant would pick an arbiter, the two arbiters together would pick a third, and the judgment of the three together would be binding).
- History shows that stateless legal orders tend to create powerful incentives for people to submit their disputes to arbitration wherever possible, in order to avoid the appearance of being an aggressor (and thus the target of defensive coercion oneself).
- Anarchy does not suffer from Locke’s judicial defect.
But government does. In any dispute between a citizen and the state, the state must by necessity act as a judge in its own case since, as a monopoly, it can recognize no judicial authority but its own. Hence governments by their nature must be subject to the judicial defect.
Constitutionalism is supposed to remedy this defect by separating the judicial branch from the executive and legislative branches, so as to prevent the judging agency from being a party to the dispute. But what if the citizen’s quarrel is with the judicial branch itself? In any case, even if the quarrel is solely with the legislative or executive branch, it would be naive to assume that the judicial branch of a monopoly will be unsullied by the interests of the other branches.
No one with a complaint against the marketing division of General Motors would be satisfied to have the case adjudicated by the legal division of General Motors! The solution to the judicial defect, then, is not a monocentric judiciary, but a polycentric one.
- Next, consider the legislative defect: the worry that without government there will be no generally known and agreed-upon body of law.
- Why not? We should rather expect markets to converge on a relatively uniform set of laws for the same reason that they tend to converge on a single currency: customer demand.
The late-mediæval private system of mercantile law known as the Law Merchant ( lex mercatoria ), for example, offered a more unified body of law than did the governmental systems with which it competed. This should be no surprise. Why are there no triangular credit cards? The reason is not government regulation, but rather that given our current system that relies on rectangular cards no one would accept it (unless the government made them accept it, thus preventing the market drive toward uniformity).
Similar reasons explain why the market no longer carries both VHS and Betamax video cartridges, but only VHS; the market creates uniformity when customers need it, and diversity when they need that instead. It’s a good thing that video cassettes come with lots of different kinds of movies, and so the market ensures this; it would be a bad thing if video cassettes came in fifty different shapes and sizes, and so the market prevents this.
Indeed, it is not polycentric legal systems, but rather monocentric ones, that suffer from the legislative defect, since a mountain of bureaucratic regulations that no one can read is in effect equivalent to an absence of generally known law. Under a private legal system, changes in law occur as a response to customer needs, and so the body of law is less likely to metastasize to such unwieldy proportions.
- The solution to the legislative defect is not to monopolize legislation, but rather to privatize it.
- Finally, consider the executive defect: the worry that without government there would be insufficient power on the part of private individuals to enforce the law.
- It is true that under anarchy each individual has the right to exercise the executive function on his or her own, but it does not follow that law enforcers will in practice be solitary and unaided.
On the contrary, voluntary associations of enforcers typically emerge as in the case of the thief-takers’ associations of early 19th-century England, or the vigilance committees of the old American frontier. Hollywood movies have accustomed us to think of the latter associations as unruly lynch mobs, and have depicted the frontier as nightmarishly violent; in historical fact, the level of criminal violence in frontier society was far lower than in our own, and the protective associations were, for the most part, reliable organizations that gave their defendants fair trials (at which defendants were often acquitted not the mark of a kangaroo court).
- Indeed, the whole notion of an organized police force is a relatively modern concept; police were extremely rare throughout ancient, mediæval, and modern history, until about the mid-19th century.
- Indeed, even the notion of a distinct governmental military is fairly unusual historically; in most societies, both law enforcement and national defense have been the job of the armed citizenry.) If there is an executive defect, it applies not to private law but to public law, in which individuals typically lack the power to withstand the arbitrary caprice of the state.
Against one marauding band one can form one’s defensive band; but who can resist the overwhelming force of an organized government? Let the victims of Warsaw, Tiananmen, or Waco judge whether the centralization of law enforcement enhanced the security of their lives, liberties, and estates.
- Abuse of power by law enforcers is in fact much easier to keep in check under the discipline of a competitive market system.
- The LAPD would have gone bankrupt overnight after the Rodney King beating if it had been a private security force with competitors in the same territory; but as matters stood, despite the public outcry, the LAPD’s “clients” had nowhere else to go, and so the LAPD’s incentive to reform its behavior is much weaker.
In short, then, the three defects Locke cites as objections to anarchy are in fact much more effective objections to government. None of the three functions of government executive, legislative, or judicial should be assigned to an exclusive monopoly.
- In the words of F.A.
- Hayek: “Law is too important a matter to be left in the hands of government.” D For more information about the stateless legal systems described in this installment, see the bibliographic essays “Polycentric Law” by Tom Bell and “Institutional Bases of the Spontaneous Order: Surety and Assurance” by Albert Loan, both in Humane Studies Review, Vol.7, No.1, 1991/92, published by the Institute for Humane Studies at George Mason University, 4084 University Drive, Fairfax VA 22030.
Next installment: Law vs. Legislation. (to top of page) (to top of outline) Roderick T. Long is Assistant Professor of Philosophy at the University of North Carolina at Chapel Hill. He is currently completing a book on the free will problem in Aristotle.
What is one of four function of the law?
FUNCTIONS OF LAW Why we need law? What functions does law have in your localities? As the issue of definition of law, there is no agreement among scholars as to the functions of law. Jurists have expressed different views about the purpose and function of law.
- It is well known that law is a dynamic concept, which keeps on changing with time and place.
- It must change with changes in the society.
- Law, in the modern sense, is considered not as an end in itself, but is a means to an end.
- The end is securing of social justice.
- Almost all theorists agree that law is an instrument of securing justice.
As Salmond rightly pointed out, “law is a body of principles recognized and applied by the State in the administration of justice.” Even Hobbes and Locke recognised the positive role of law when they said, “the end of law is not to abolish or restrain but to preserve or enlarge freedom and liberty.” For Kant, the aim of law is the adjustment of one’s freedom to those of other members of the community.
Bentham gave a very practical version of the purpose of law, which according to him, is maximization of the happiness of the greatest number of the members of the community. According to Holland, the function of law is to ensure the well-being of the society. Thus it is something more than an institution for the protection of individuals’ rights.
Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering.
- The Realist view about the purpose and function of law is that for the pursuit of highest good of the individuals and the state as such controlling agency.
- The object of law is to ensure justice.
- The justice may be either distributive or corrective.
- Distributive justice seeks to ensure fair distribution of social benefits and burden among the members of the community,
Corrective justice, on the other hand, seeks to remedy the wrong. Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. This is corrective justice. Rule of law is sine qua non for even-handed dispensation of justice.
- It implies that every one is equal before law and law extends equal protection to everyone; judges should impart justice without fear or favour and like cases should be treated alike.
- It must, however, be stated that justice alone is not the only goal of law.
- The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility.
Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalized, the citizen can plan his/her activities with a measure of certainty and predict the legal consequence of his/her conducts. This is even more necessary in case of certain laws, notably, the law of contract or property.
- Uniformity and certainty of rules of law also bring stability and security in the social order.
- Today the following are taken as important functions of law.
- A) Social control – members of the society may have different social values, various behaviours and interests.
- It is important to control those behaviours and to inculcate socially acceptable social norms among the members of the society.
There are informal and formal social controls. Law is one of the forms of formal social controls. As to Roscoe Pound, law is a highly specialized form of social control in developed politically organized society. Lawrence M. Freedman explains the following two ways in which law plays important role in social control: first, law clearly specifies rules and norms that are essential for the society and punishes deviant behaviour.
- Secondly, the legal system carries out many rules of social control.
- Police arrest burglars, prosecutors prosecute them, courts sentence them, prison guards watch them, and parole broads release them B) Dispute settlement Disputes are un avoidable in the life of society and it is the role of the law to settle disputes.
Thus, disagreements that are justiceable will be resolved by law in court or out of court using alternative dispute settlement mechanisms, C) Social change A number of scholars agree about the role of law in modern society as instrument to social change.
Law enables us to have purposive, planned, and directed social change, Flexibility of law provides some measure of discretion in law to make it adaptable to social conditions. If law is rigid and unalterable, it may not respond to changes spontaneously which may lead to resentment and dissatisfaction among the subjects and may even result into violence or revolution.
Therefore, some amount of flexibility is inevitable in law, RELATIONSHIP BETWEEN LAW AND STATE What relationship do you envisage between law and state? There are three main legal theories with regard to the relationship between law and state. They are: the state is superior to and creates law; law precedes the state and binds it when it comes into existence; law and the state are the same thing looked at from different points of view.
Austin explains that state is superior to and creates law when he defines law as the command of the sovereign. According to Austin, there must be a political society of ‘considerable’ numbers, and a superior in that society who is habitually obeyed by the bulk of the members of that community. Within this community, the superior has a sovereign power to lay down the law.
Collectively considered, the sovereign is above the law, but a member of the legislature is individually bound by the law. Do you agree with this proposition? Reason out The theory of sovereignty has been of service as a formal theory, but some writers go farther and seek to justify sovereignty as a moral necessity instead of as a convenient hypothesis.
- For example, Hegelianism treats the state as a supreme moral end being a value in itself; it is not bound by the rules of ethics that apply to individual person.
- This theory ‘grants to state absolutism the virtue of moral truth’.
- The state is the divine idea as it exists on earth’.
- Do you share this idea? This theory has been carried farther by the Naizi and Fascist conceptions, which regard law as but the will of the Leader.
These doctrines treat law as an instrument of executive action, not as a check upon it: law is a weapon to achieve the ends of state policy, not a chain to hamper the executive. According to the second theory, law may bind the State. The sovereign has absolute power over positive law, but is bound by ius naturale,
- Ihering considered that law in the full sense was achieved only when it bound both ruler and ruled.
- Ihering regards state as the maker of law and he argues that law is the intelligent policy of power, and it is easier to govern if the state voluntarily submits to the law it has created.
- Then, Jellinek develops this doctrine into a theory of auto limitation-the State is the creator of law, but voluntarily submits to it.
However, Krabbe and Duguit deny that the State creates law. Once we postulate that law is created by a source other than the State, it is easy to see how the State can be bound. According to Krabbe, the source of law is the subjective sense of right in the community.
- He asserts that any statute, which is opposed to the majority sense of right, is not law.
- The legislature, executive, and the judiciary are subordinate instruments through which the community expresses its sense of values.
- How can a sense of right be effective unless persons are willing to put their wills at the service of the ends they desire? What is the gist of the third theory on the relationships between law and state? Kelsen illustrates the third type of theory that law and the state are really the same.
The state is only the legal order looked at from another point of view. When we think of the abstract rules, we speak of the law: when we consider the institutions, which create those rules, we speak of the State. However, the practical importance of Kelesen’s approach is that he emphasizes that law is a more fundamental notion than that of the State.
- While it is true that law cannot exist without a legal order that order may take forms other than that of the state.
- Hence, the theory is wider, and therefore more acceptable, than that of Austin.
- A legal order may be created in the international sphere even though no super state is set up.
- What is state? The normal marks of a state are a fixed territory, population, and competence to rule which is not derived from another state.
Kantorowicz, defines the state as a juristic person endowed with the right to impose its will on the inhabitants of a given territory, of which right it cannot by law be deprived without its own consent. It may be argued that the law being an instrument of the state is created and established along with it.
- No state has ever been without system of law, however crude it may have been.
- In like manner, system of law has been without a state defining either directly (i.e., through enactments) or indirectly (through recognition) the law is and assuring its validity and guarantying its endowment through the special machinery at the disposal of the state only.
That is why law is generally defined as a set of general statements aimed at regulating choices in possible human behaviour that is defined or recognized, published and sanctioned warded by the state. The definition of law in terms of the State possesses some advantages.
It gives a clear-cut and simple test. It supplies an easy manner to show a conflict between various juridical orders for example between Church and State. If only the State can provide positive law, then the Church can have only such legal rules the state grants it. It gives an easy answer to the problem of validity of law, since law is valid for the simple reason that it has been laid down by the sovereign.
It is easy to mark the moment when primitive rules become law, for we have only to ask whether there is a determinate sovereign body that has issued a command. DIFFERENCE BETWEEN LEGAL NORMS AND NON-LEGAL NORMS According to Black’s Law Dictionary, norm is “a model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something”.
Thus, norm connotes a standard that is accepted by society voluntarily or in voluntarily. The society can judge someone or something against the norm. For example, the standard to determine a given behaviour as right or wrong is norm. We have seen that one of the natures of law is that it is a norm. The general statement of a legal norm is not a mere rendition.
In fact, all social norms differ from the mere resumption of a philosopher or a doctor, etc. True such propositions made by philosophers and medical doctors may be useful addresses; but nobody is bound to follow them. In contrary, legal norms are binding.
- In fact, the essence of the legal norms is that members of the society are bound to behave in accordance with the law.
- That is why we usually refer to statements about what will happen to an addressee who behave in accordance with the law attached to the general statements.
- These are what we call sanctions.
Sanctions answer the question: How does the community or group in case the norms are not obeyed? What are the guarantees to ensure that the norm will be adhered to? Sanctions are various types but their common objective is to form norm and to follow the prescribed norms.
- Even permissive norms are protected by sanctions; though in their case the sanction is addressed to the person permitted to do the thing but to the rest of the world commanding everybody else not to interfere with the rights of the person so entitled.
- To summarize, normativity means the choice, which the rule presents with respect to the described human behaviour; the mandatory character of the norm as well as the possibility of enforcing the norm where it is ignored.
Of course, law is not only social norm that has this character of normativity. Essentially, all kinds of social norms have it because it is only this character of normativity that converts any general statement into a norm. Hence, in as far as this character of normativity is concerned, legal norms differ from the other social norms mainly by the number of persons they address themselves to and by the nature of the sanctions they apply.
- Every legal norm is formally structured; and the three formal elements of a norm’s structure are the premise (hypothesis), the disposition and the sanction.
- The premise describes the social circumstances or the situations or events, which are the background for the social behaviour that the norm has in mind, and this includes a description of the addressees themselves.
The dispositive element describes the kind of human behaviour envisaged and preferred by the norm as well as the choice that norm makes in this respect. It is said that it is this element that contains the essence of the norm. The sanction is that part of the norm that describes what will happen if the norm is disobeyed.
However, note should be made of the fact that we do not find all the three formal structural elements in one formulation of a single legal norm (i.e., one paragraph, one article, etc.). Often also we see that provisions of criminal code only embody half of the dispositive element and the sanction alone, leaving the rest for inference.
It therefore means that complete comprehension of a single norm implies the linking together of various provisions of the law that often belong to different branches of the legal system. That is why it is said that it is always necessary to have a comprehensive understanding of the whole legal system in order to correctly apply even one norm.
We can observe that law is a set of norms regulating, in a general and binding manner, the general behaviour of person, there by organizing, protecting and develop certain social relations. Do you agree with this? Why or why not? Both legal and non-legal norms are normatives, that means both need to create and develop human behaviours.
Non-legal norms have been inexistent before state is created while legal norms have come into existence with the coming into being of state. Thus, societies have been used to be regulated by non-legal norms fo0r example, at the time of communal society.
- But legal norms were gradually emerged.
- What are the relations between legal and non-legal norms? What is the distinction between law and ethics? Law tends to prescribe what is considered necessary for the given time and place.
- Ethics concentrates on the individual rather than upon society; law is concerned with the social relationships of the society rather than the individual excellence of their characters and conduct.
Ethics must consider the motive for action as all-important; whereas law is concerned mainly with requiring conduct to comply with certain standards, and it is not usually concerned with the motives of persons. It is too narrow, however, to say that ethics deals only with the individual, or that ethics treats only of the ‘interior’ and law only of the ‘exterior’, for ethics in judging acts must consider the consequences that flow from them and it is not possible to analyse the ethical duties of person without considering his/her obligations to his/her fellows or his/her place in society.
It is equally misleading to concentrate upon those aspects of the law which are concerned directly with conduct and with ‘exterior’ factors in person’s social relations, to the exclusion of those which, explicitly or implicitly, are aimed at intention, motive and the ends which persons seek. Law, in elaborating its standards, must not try to enforce the good life as such; it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do.
There are many ethical rules the value of the observance of which lies in the voluntary choice of those who attempt to follow them. Nevertheless, there are other rules, which it is essential for law to enforce for the well-being of the community. Ethics thus perfects the law.
- In marriage, so long as love persists, there is little need of law to rule the relations of husband and wife-but the solicitor comes in through the door, as love flies out the window.
- Law thus lays down only those standards, which are considered essential, whatever be the motive of compliance.
- In one sense law may be a ‘minimum ethic’, but frequently law has to solve disputes on which the rules of ethics throw very little light-where two persons, neither guilty of negligence, have suffered by the fraud of a third, who is to bear the loss? Ethics may suggest that the loss should be equally divided, but this is not a very practical rule for the law that requires definite rules for the passing of title and the performance of contracts.
Law and ethics are also interconnected. What are today regarded as purely religious were once enforced by law; conversely, modern law will enforce many rules designed to save the individual from him/herself in a way that would have seemed absurd to a disciple of LAISSEZ-FAIRE.
- There is no immutable boundary to the area of the operation of law.
- Another important difference between law and ethics is that a person is free to accept or reject the obligations of ethics, but legal duties are heteronymous, i.e., imposed on the individual without his/her consent.
- If a rule of ethics, which is in accord with positive morality, is broken, there may be the effective sanction of the pressure of public opinion, but ethical rules are in advance of the views of a particular community are imposed by no earthly force.
What is more, it has been suggested that law creates both duties and rights whereas ethics can create only duties. This, however, may easily become a mere matter of terminology. If Ayalew is under a duty to support his father, why cannot we say that the others have ethical right to be supported? This right will not, of course, be enforced merely because it is decreed by ethics, and nether will breach of the duty to be punished, but logically even in case of ethics it is hard to conceive of a duty unless there is a corresponding right.
Furthermore, ethics deals with the absolute ideal, but positive morality is made up of the actual standards, which are adopted in the life of any particular community. Positive morality therefore (like law), emphasizes on conduct rather than the state of mind; it is also similar to law in that it is imposed on the individual from without, for it has behind it the effective, if unorganized, sanction of public opinion.
How many persons would rather break the law than wear the wrong tie with a dinner jacket? Here we see the sanction behind a mere rule of etiquette, and the fear of ridicule or social ostracism protects strongly the more important rules of positive morality.
- In general, there are similarities and differences between law and morality.
- Their similarities, according to Hart, are: 1) they are alike binding regardless of the consent of individual bound and supported by serious social pressure for conformity; 2) compliance with both legal and moral obligation is considered as a minimum contribution to social life.
This is because as we have already discussed compliance with legal norms enable the members of the sociality to live together. The same holds tree with respect to moral obligations.3) Both law and morals include rules that are essential for life in general even though they also include special rules applicable to special activities.
- Thus, the members of the society are required to comply with those rules to live to gather.
- Thus, prohibition to violence to person and property are found in both law and morals.
- What are the differences between law and positive morality? Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality.
Firstly, a rule of law is imposed by the State; secondly, while there may be a sanction behind the rules of positive morality, it is not applied by organized machinery, nor is it determined in advance Third, some argue that the content of law is different from that of social morality: but, while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation.
- Law, positive morality, and ethics are overlapping circles, which can never entirely coincide, but the hand of person can move them and determine the content that is concerned to all or two or confined to one.
- Ethics condemns murder, because it is once accepted by both positive morality and law.
- We do find a close relationship between the rules of law and rules of positive morality, for the latter determine the upper and lower limits of the effective operation of law.
If the law lags behind popular standards it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must be recognized that law in its turn plays a part in fixing the moral standards of the average person.
- Fourthly, it has been suggested that the method of expression should be used as a test-rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language.
- There is much truth in this, but the distinction is only relative; for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles.
Theoretically, there may be some difficulty in determining the exact distinction between positive morality and law. In practice, however, the legal order provides machinery for the determination of difficult cases. If a sick relative, dependent on Ayalew for the needs of life, is so neglected by Ayalew that death results, is this a breach of a legal duty or merely an infringement of positive morality? : FUNCTIONS OF LAW
What is the primary purpose of law quizlet?
What is purpose of law? The purpose of laws is rules of conduct, usually found enacted in the form of statutes that regulate relationships between people and also between parties. What would a society without laws be like? Without laws would have the primary functions of the law is to maintain public order.
What are the 3 types of functions?
Types of Functions Many – one function. Onto – function (Surjective Function) Into – function. Polynomial function.
What are the 3 primary sources of law?
Primary sources of law are constitutions, statutes, regulations, and cases. Lawmaking powers are divided among three branches of government: executive; legislative; and judicial. These three branches of government, whether federal or state, create primary sources of law.
The executive branch creates administrative law, which is published as regulations or executive orders and directives.
The President of the United States makes executive orders and directives. Administrative agencies of the government (for example, the Environmental Protection Agency or EPA) makes rules and regulations.
The legislative branch creates laws (“statutes”) that are passed and published as statutes. The judicial branch creates law in the form of decisions, also called “opinions” and “cases,” that are published in case reporters.
Judges create and shape the “common law.” In a common law system, the law is expressed in an evolving body of doctrine determined by judges in specific cases, rather than in a group of prescribed abstract principles. The common law grows and changes over time. An important element of common law is stare decisis, which means that courts are bound to follow earlier decisions (“precedents”).
Where Does Law Come From? This online CALI lesson explains the separation of powers among the three branches of government. Branches of the U.S. Government from the U.S. General Services Administration This federal government website describes the three branches of the U.S. Government and how they work together and check and balance one another.
What are the four primary types of law?
1 T. Aquinas, Romans, 2:15.
They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them.1
2 T. Aquinas, Summa Theologica, I, I: 8, http://www.summatheologica.info/summa/parts/?p=1
Grace does not destroy nature but perfects it,2 1 Thomas Aquinas (1225–1274) was an intellectual and religious revolutionary, living at a time of great philosophical, theological and scientific development. He was a member of the Dominican Friars, which at that time was considered to be a cult, and was taught by one of the greatest intellects of the age, Albert the Great (1208–1280).
In a nutshell Aquinas wanted to move away from Plato’s thinking, which was hugely influential at the time, and instead introduce Aristotelian ideas to science, nature and theology.2 Aquinas wrote an incredible amount — in fact one of the miracles accredited to him was the amount he wrote! His most famous work is Summa Theologica and this runs to some three and half thousand pages and contains many fascinating and profound insights, such as proofs for God’s existence.
The book remained a fundamental basis for Catholic thinking right up to the 1960s! But do not worry we will only be focusing on a few key ideas! Specifically books I–II, questions 93–95.3 The likely answer from a religious person as to why we should not steal, or commit adultery is: “because God forbids us”; or if we ask why we should love our neighbour or give money to charity then the answer is likely to be “because God commands it”.
Drawing this link between what is right and wrong and what God commands and forbids is what is called the Divine Command Theory (DCT).4 There is a powerful and influential challenge to such an account called the Euthyphro dilemma after the challenge was first raised in Plato’s Euthyphro, The dilemma runs as follows: Either God commands something is right because it is, or it is right because God commands it.
If God commands something because it is right, then God’s commands do not make it right, His commands only tell us what is right. This means God simply drops out of the picture in terms of explaining why something is right.5 If on the other hand something is right because God commands it then anything at all could be right; killing children or setting fire to churches could be morally acceptable.
- But if a moral theory says this then that looks as if the theory is wrong.6 Most theists reject the first option and opt for this second option — that God’s commands make something right.
- But they then have to face the problem that it make morality haphazard.
- This ” arbitrariness problem ” as it is sometimes called, is the reason that many, including Aquinas, give up on the Divine Command Theory.7 So for Aquinas what role, if any at all, does God have when it comes to morality? For him, God’s commands are there to help us to come to see what, as a matter of fact, is right and wrong rather than determine what is right and wrong.
That is, Aquinas opts for the first option in the Euthyphro dilemma as stated above. But then this raises the obvious question: if it is not God’s commands that make something right and wrong, then what does? Does not God just fall out of the picture? This is where his Natural Law Theory comes in.8 Aquinas’s Natural Law Theory contains four different types of law: Eternal Law, Natural Law, Human Law and Divine Law,
- The way to understand these four laws and how they relate to one another is via the Eternal Law, so we’d better start there 9 By “Eternal Law'” Aquinas means God’s rational purpose and plan for all things.
- And because the Eternal Law is part of God’s mind then it has always, and will always, exist.
- The Eternal Law is not simply something that God decided at some point to write.10 Aquinas thinks that everything has a purpose and follows a plan.
He, like Aristotle, is a teleologist (the Greek term ” telos ” refers to what we might call a purpose, goal, end/or the true final function of an object) (see Chapter 3; not to be confused with a telelogical ethical theory such as Utilitarianism) and believes that every object has a telos ; the acorn has the telos of growing into an oak; the eye a telos of seeing; a rat of eating and reproducing etc.
(notice this links to his view on sex, see Chapter 10). If something fulfils its purpose/plan then it is following the Eternal Law.11 Aquinas thinks that something is good in as far as it fulfils its purpose/plan. This fits with common sense. A ” good ” eye is one which sees well, an acorn is a good if it grows into a strong oak tree.12 But what about humans? Just as a good eye is to see, and a good acorn is to grow then a good human is to? Is to what? How are we going to finish this sentence? What do you think? 13 Aquinas thinks that the answer is reason and that it is this that makes us distinct from rats and rocks.
What is right for me and you as humans is to act according to reason. If we act according to reason then we are partaking in the Natural Law,14 If we all act according to reason, then we will all agree to some overarching general rules (what Aquinas calls primary precepts ).
These are absolute and binding on all rational agents and because of this Aquinas rejects relativism,15 The first primary precept is that good is to be pursued and done and evil avoided. He thinks that this is the guiding principle for all our decision making.16 Before unpacking this, it is worth clarifying something about what “law” means.
Imagine that we are playing Cluedo and we are trying to work out the identity of the murderer. There are certain rules about how to move around the board, how to deal out cards, how to reveal the murderer etc. These rules are all written down and can be consulted.17 However, in playing the game there are other rules that operate which are so obvious that they are neither written down nor spoken.
- One such rule is that a claim made in the game cannot both be true and false; if it is Professor Plum who is the murderer then it cannot be true that it is not Professor Plum who is the murderer.
- These are internal rules which any rational person can come to recognize by simply thinking and are not external like the other rules — such as you can only have one guess as to the identity of the murderer.
When Aquinas talks of Natural Laws, he means internal rules and not external ones.18 Natural Law does not generate an external set of rules that are written down for us to consult but rather it generates general rules that any rational agent can come to recognize simply in virtue of being rational.
- Protect and preserve human life.
- Reproduce and educate one’s offspring.
- Know and worship God.
- Live in a society,
19 These precepts are primary because they are true for all people in all instances and are consistent with Natural Law.20 Aquinas also introduces what he calls the Human Law which gives rise to what he calls ” Secondary Precepts “. These might include such things as do not drive above 70mph on a motorway, do not kidnap people, always wear a helmet when riding a bike, do not hack into someone’s bank account.
- Secondary precepts are not generated by our reason but rather they are imposed by governments, groups, clubs, societies etc.21 It is not always morally acceptable to follow secondary precepts.
- It is only morally acceptable if they are consistent with the Natural Law.
- If they are, then we ought to follow them, if they are not, then we ought not.
To see why think through an example.22 Consider the secondary precept that ” if you are a woman and you live in Saudi Arabia then you are not allowed to drive “. Aquinas would argue that this secondary precept is practically irrational because it treats people differently based on an arbitrary difference (gender).
- He would reason that if the men in power in Saudi actually really thought hard then they too would recognize that this law is morally wrong.
- This in turn means that Aquinas would think that this human law does not fit with the Natural Law.
- Hence, it is morally wrong to follow a law that says that men can, and women cannot, drive.
So although it is presented as a secondary precept, because it is not in accordance with Natural Law, it is what Aquinas calls an apparent good, This is in contrast with those secondary precepts which are in accordance with the Natural Law and which he calls the real goods,23 Unlike primary precepts, Aquinas is not committed to there being only one set of secondary precepts for all people in all situations.
It is consistent with Aquinas’s thinking to have a law to drive on the right in the US and on the left in the UK as there is no practical reason to think that there is one correct side of the road on which to drive.24 It is clear that on our own we are not very good at discovering primary precepts and consequently Aquinas thinks that what we ought to do is talk and interact with people.
To discover our real goods — our secondary precepts which accord with Natural Law — we need to be part of a society. For example, we might think that “treat Christians as secondary citizens” is a good secondary precept until we talk and live with Christians.
The more we can think and talk with others in society the better and it is for this reason that “live in society” is itself a primary precept.25 But looking at what we have said already about Natural Laws and primary and secondary precepts, we might think that there is no need for God. If we can learn these primary precepts by rational reflection then God simply drops out of the story (recall the Euthyphro dilemma above).26 Just to recap as there a lots of moving parts to the story.
We now have Eternal Law (God’s plans/purpose for all things), Natural Laws (our partaking in the Eternal Law which leads to primary precepts), Human Laws (humans making specific laws to capture the truths of the Natural Laws which lead to secondary precepts) and now finally Aquinas introduces the Divine Law,27 The Divine Law, which is discovered through revelation, should be thought of as the Divine equivalent of the Human Law (those discovered through rational reflection and created by people).
Divine laws are those that God has, in His grace, seen fit to give us and are those “mysteries”, those rules given by God which we find in scripture; for example, the ten commandments. But why introduce the Divine Law at all? It certainly feels we have enough Laws. Here is a story to illustrate Aquinas’s answer.28 A number of years ago I was talking to a minister of a church.
He told me about an instance where a married man came to ask his advice about whether to finish an affair he was having. The man’s reasoning went as follows — “I am having an affair which just feels so right, we are both very much in love and surely God would want what is best for me! How could it be wrong if we are so happy?” 29 In response, the minister opened the Bible to the Ten Commandments and pointed out the commandment that it says that it is wrong to commit adultery.
- Case closed.
- The point of this story is simple.
- We can be confused and mistaken about what we think we have most reason to do and because of this we need someone who actually knows the mind of God to guide us, and who better to know this than God Himself.
- This then is precisely what is revealed in the Divine Law.30 Or consider another example.
We recognize that we find it hard to forgive our friends and nearly always impossible to forgive our enemies. We tell ourselves we have the right to be angry, to bear grudges, etc. Isn’t this just human? However, these human reasons are distortions of the Eternal Law.
We need some guidance when it comes to forgiveness and it is where the Divine Law which tells us that we should forgive others — including our enemies. Following the Human Laws and the Divine Laws will help us to fulfil our purposes and plans and be truly happy.31 For Aquinas everything has a function (a telos ) and the good thing (s) to do are those acts that fulfil that function.
Some things such as acorns, and eyes, just do that naturally. However, humans are free and hence need guidance to find the right path. That right path is found through reasoning and generates the “internal” Natural Law. By following the Natural Law we participate in God’s purpose for us in the Eternal Law.32 However, the primary precepts that derive from the Natural Law are quite general, such as, pursue good and shun evil,
- So we need to create secondary precepts which can actually guide our day-to-day behaviour.
- But we are fallible so sometimes we get these secondary precepts wrong, sometimes we get them right.
- When they are wrong they only reflect our apparent goods.
- When they are right they reflect our real goods.33 Finally, however good we are because we are finite and sinful, we can only get so far with rational reflection.
We need some revealed guidance and this comes in the form of Divine Law. So to return to the Euthyphro dilemma. God’s commands through the Divine Law are ways of illuminating what is in fact morally acceptable and not what determines what is morally acceptable.
Aquinas rejects the Divine Command Theory.34 Let’s consider some examples to show that what we have said so far might actually work. Imagine someone considering suicide. Is this morally acceptable or not? Recall, it is part of the Natural Law to preserve and protect human life. Clearly suicide is not preserving and protecting human life.
It is therefore irrational to kill oneself and cannot be part of God’s plan for our life; hence it is morally unacceptable.35 Imagine that someone is considering having an abortion after becoming pregnant due to rape. The same reasoning is going to apply.
We ought to preserve and protect human life and hence an abortion in this case is morally wrong.36 However, as we will see, Aquinas thinks that there are some instances where it is morally acceptable to kill an innocent person and therefore there may be occasions when it is morally acceptable to kill a fœtus.
But how can this be correct? Will this not violate the primary precept about preserving life? The answer is to understand that for Aquinas, an action is not just about what we do externally but is also about what we do internally (i.e. our motivations).
- With this distinction he can show that, for example, killing an innocent can be morally acceptable.37 To make this clear, Aquinas introduces one of his most famous ideas: the ” Doctrine of Double Effect “.
- Let’s see how this works.
- Imagine a child brought up in a physically, sexually and emotionally abusive family.
He is frequently scared for his life and is locked in the house for days at a time. One day when his father is drunk and ready to abuse him again he quickly grabs a kitchen knife and slashes his father’s artery. His father bleeds out and dies in a matter of minutes.
- Do you think the son did anything wrong? 38 Many people would say that he did nothing morally wrong and in fact, some might even go as far as to say that he should get a pat on the back for his actions.
- What about Aquinas? What would he say? 39 We might think that given the Natural Law to “preserve and protect life” he would say that this action is morally wrong.
But, in fact, he would say the son’s action was not morally wrong (Aquinas discusses self-defence in the Summa Theologica (II–II, Qu.64)).40 So why is the son killing the father not in direct contradiction with the primary precept? Aquinas asks us to consider the difference between the external act — the fact that the father was killed, and the internal act — the motive.41 In our example, the action is one of self-defence because of the son’s internal action and because of this, Aquinas would think the killing is morally acceptable.
- The first principle is that the act must be a good one.
- The second principle is that the act must come about before the consequences.
- The third is that the intention must be good.
- The fourth, it must be for serious reasons.
42 This is abstract so let’s go back to our example. The act of the son was performed to save his own life so that is good — we can tick (1). Moreover, the act to save his life came about first — we can tick (2). The son did not first act to kill his father in order to save his own life.
- That would be doing evil to bring about good and that is never morally acceptable.
- The intention of the son was to preserve and protect his life, so the intention was good — tick (3).
- Finally, the reasons were serious as it was his life or his father’s life — tick (4).43 So given that the act meets all four principles, it is in line with the DDE and hence the action is morally acceptable, even though it caused someone to die and hence seems contrary to the primary precept of preserving life.44 We can draw a contrasting case.
Imagine that instead of slashing his father in self-defence, the son plans the killing. He works out the best time, the best day and then sets up a trip wire causing his father to fall from his flat window to his death. Does this action meet the four criteria of the DDE? Well, no, because the son’s intention is to kill the father rather than save his own life — we must put a cross at (3).45 We have already seen that suicide is morally impermissible for Aquinas, so does that mean that any action you take that leads knowingly to your own death is morally wrong? No.
- Because even though the external act of your own death is the same, the internal act — the intention — might be different.
- An action is judged via the Natural Law both externally and internally,46 Imagine a case where a soldier sees a grenade thrown into her barracks.
- Nowing that she does not have time to defuse it or throw it away, she throws herself on the grenade.
It blows up, killing her but saving other soldiers in her barracks. Is this wrong or right? Aquinas says this is morally acceptable given DDE. If we judge this act both internally and externally we’ll see why.47 The intention — the internal act — was not to kill herself even though she could foresee that this was certainly what was going to happen.
The act itself is good, to save her fellow soldiers (1). The order is right, she is not doing evil so good will happen (2). The intention is good, it is to save her fellow soldiers (3). The reason is serious, it concerns people’s lives (4).48 Contrast this with a soldier who decides to kill herself by blowing herself up.
The intention is not good and hence the DDE does not permit this suicidal action.49 Finally, imagine that a woman is pregnant and also has inoperable uterine cancer. The doctors have two choices; to take out the uterus and save the mother, but the fœtus will die; or leave the fœtus to develop and be born healthy, but the woman will die.
- What would Aquinas say in this instance? Well using the DDE he would say that it is morally acceptable to remove the cancer.50 The action is to remove the cancer; it has the foreseeable consequences of the fœtus dying but that is not what is intended.
- The action — to remove the cancer — is good (1).
- The act of removing the cancer comes before the death of the fœtus (2).
The intention to save the woman’s life is also good (3). Finally, the reasons are serious as they are about the life and death of the woman and the fœtus (4).51 So even though this is a case where the doctor’s actions bring about the death of the fœtus it would be acceptable for Aquinas through his Natural Law Theory, as is shown via the DDE.52 There are many things we might consider when thinking through Aquinas’s Natural Law Theory.
There are some obvious problems we could raise, such as the problem about whether or not God exists. If God does not exist then the Eternal Law does not exist and therefore the whole theory comes tumbling down. However, as good philosophers we ought always to operate with a principle of charity and grant our opponent is rational and give the strongest possible interpretation of their argument.
So, let’s assume for the sake of argument that God exists. How plausible is Aquinas’s theory? There are a number of things that we can pick up on.53 Aquinas’s theory works on the idea that if something is “natural”, that is, if it fulfils its function, then it is morally acceptable, but there are a number of unanswered questions relating to natural,54 We might ask, why does “natural” matter? We can think of things that are not “natural” but which are perfectly acceptable, and things which are natural which are not.
For example, wearing clothes, taking medication and body piercing certainly are not natural, but we would not want to say such things are morally wrong.55 On the other hand we might consider that violence is a natural response to an unfaithful partner, but also think that such violence is morally unacceptable.
So it is not true that we can discover what is morally acceptable or not simply by discovering what is natural and what is not.56 Put this worry aside. Recall, Aquinas thinks that reproduction is natural and hence reproduction is morally acceptable. This means that sex that does not lead to reproduction is morally unacceptable.
Notice that Aquinas is not saying that if sex does not lead to pregnancy it is wrong. After all, sometimes the timing is not right. His claim is rather that if there is no potential for sex to lead to pregnancy then it is wrong. However, even with this qualification this would mean a whole host of things such as homosexuality and contraception are morally wrong.
We might take this as a reason to rethink Aquinas’s moral framework (we discuss these apparent problems in more detail in Chapter 10).57 There is, though, a more fundamental worry at the heart of this approach (and Aristotle’s) to ethics. Namely, they think that everything has a goal ( telos ).
Now, with some things this might be plausible. Things such as the eye or an acorn have a clear function — to grow, to see — but what about humans? This seems a bit less obvious! Do humans (rather than our individual parts) really have a telos ? There are certainly some philosophers — such as the existentialists, for example Simone de Beauvoir (1908–1986) — who think that there is no such thing as human nature and no such thing as a human function or goal.
But if we are unconvinced that humans have a goal, then this whole approach to ethics seems flawed.58 Next we might raise questions about DDE. Go back to our example about abortion. For Aquinas it is morally acceptable to remove the uterus even if we know that in doing so the fœtus will die.
- What is not morally acceptable is to intend to kill the fœtus by removing the uterus.
- On first reading this seems to makes sense; we have an intuitive feel for what DDE is getting at.
- However, when we consider it in more detail it is far from clear.59 Imagine two doctors who (apparently) do exactly the same thing, they both remove the uterus and the fœtus dies.
The one intends to take out the uterus — in full knowledge that the fœtus will die — the other intends to kill the fœtus. For the DDE to work in the way that Aquinas understands it, this difference in intention makes the moral difference between the two doctors.
- However, is there really a moral difference? To put pressure on the answer that there is, ask yourself what you think it means to intend to do something.
- If the first doctor says “I did not intend to kill the fœtus” can we make sense of this? After all, if you asked her “did you know that in taking out the uterus the fœtus would die?” she would say “yes, of course”.
But if she did this and the fœtus died, did not she intend (in some sense) to kill the fœtus? So this issue raises some complex question about the nature of the mind, and how we might understand intentions.60 Finally, we might wonder how easy it is to work out what actually to do using the Natural Law.
We would hope our moral theory gives us direction in living our lives. That, we might think, is precisely the role of a moral theory. But how might it work in this case? 61 For Aquinas, if we rationally reflect then we arrive at the right way of proceeding. If this is in line with the Natural Law and the Divine Law then it is morally acceptable.
If it is out of line, then it is not. The assumption is that the more we think, the more rational we become, the more convergence there will be. We’ll all start to have similar views on what is right and wrong. But is this too optimistic? Very often, even after extensive reflection and cool deliberation with friends and colleagues, it is not obvious to us what we as rational agents should do.
- We all know people we take to be rational, but we disagree with them on moral issues.
- And even in obviously rational areas such as mathematics, the best mathematicians are not able to agree.
- We might then be sceptical that as rational agents we will come to be in line with the Natural and Divine Laws.
SUMMARY Aquinas is an intellectual giant. He wrote an incredible amount covering a vast array of topics. His influence has been immense. His central idea is that humans are created by God to reason — that is our function. Humans do the morally right thing if we act in accordance with reason, and the morally wrong thing if we don’t.
- Thinking that Aquinas is a Divine Command Theorist.
- Thinking that Eternal Law is something that God decided to write.
- Thinking that Natural Laws are laws of science — e.g. law of thermodynamics.
- Thinking that all the “laws” are absolute.
- Thinking that it is always morally required of us to follow secondary precepts.
- Thinking that Aquinas is committed to there being only one set of secondary precepts for all people in all situations.
- If God exists then what — if anything — do you think that has to do with what is right and wrong?
- We might answer the “arbitrariness” dilemma by citing God’s nature. Why might this answer be problematic?
- What is the Eternal Law?
- What are Natural Laws and primary precepts?
- What are Human Laws and secondary precepts?
- What are Divine Laws?
- Just as a good eye is to see, and a good acorn is to grow then a good human is to? Is to what? How are we going to finish this sentence?
- People often talk about what is “natural”? What do you think they mean by this? How useful is the notion of “natural” in a moral theory?
- Think of a descriptive claim. Think of a prescriptive claim. Why might it be problematic moving from one to the other?
- If people thought long enough, do you think there would be convergence on what is morally right and wrong?
- What is the Doctrine of Double Effect?
- What is the difference — if anything — between intending to bring about some end and acting where you know your action will bring about that end?
KEY TERMINOLOGY Apparent goods A priori A posteriori Eternal Law External acts Natural Law Primary precepts Real goods Secondary precepts Internal acts Doctrine of Double Effect
What is a primary source in law?
Primary legal sources are the books and websites that comprise the formal, written statements of law issued by government entities. The ‘law,’ in this context, includes everything from a state’s statutes to a city’s ordinances to caselaw published by a court.
What two functions do laws?
What two functions does law perform? Laws tell citizens what they can and cannot do. Laws also tell government officials when they can seek to punish citizens for violations and how they must go about it.
What is the full meaning of law?
1. a rule or set of rules, enforceable by the courts, regulating the government of a state, the relationship between the organs of government and the subjects of the state, and the relationship or conduct of subjects towards each other.2.a. a rule or body of rules made by the legislature.
What type of law is the most important?
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation’s Constitution, which prescribes the foundation of the federal government of the United States, as well as various civil liberties,
The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary, The United States Code is the official compilation and codification of general and permanent federal statutory law.
Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50 U.S. states and in the territories. However, the scope of federal preemption is limited because the scope of federal power is not universal.
- In the dual sovereign system of American federalism (actually tripartite because of the presence of Indian reservations ), states are the plenary sovereigns, each with their own constitution, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.
- Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.
Thus U.S. law (especially the actual “living law” of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.
Which source of law is most important?
The United States Constitution is the preeminent source of law in the American legal system. All other statutes, court opinions and regulations must comply with its requirements. Each state also has its own constitution.
What is the most important law in the Constitution?
The First Amendment is widely considered to be the most important part of the Bill of Rights. It protects the fundamental rights of conscience—the freedom to believe and express different ideas—in a variety of ways. Under the First Amendment, Americans have both the right to exercise their religion as well as to be free from government coercion to support religion.
- In addition, freedoms of speech, press, and petition make democratic self-government possible by promoting the open exchange of information and ideas.
- Unpopular ideas are especially protected by the First Amendment because popular ideas already have support among the people.
- As Justice Oliver Wendell Holmes said, “freedom for the thought that we hate” is important to the discovery of truth, because sometimes viewpoints change.
According to Holmes, the way to oppose thoughts with which we disagree is not to ban them, but to speak up for what we believe. In this way, truth has an opportunity to compete in the “marketplace of ideas.” No right is unlimited, and there are exceptions to freedom of expression as well.
- It is illegal to harm another person’s reputation through falsehood or advocate specific violent acts.
- Another limitation on freedom of expression is national security.
- Freedom of speech and the press do not protect the disclosure of key information about troop movements during wartime, for example.
- However, in New York Times v.
United States (1973), the Supreme Court ruled that a history of the Vietnam War known as the “Pentagon Papers” did not reveal critical information that would endanger lives in battle. Therefore, newspapers were free to publish these documents. The Second Amendment links the right to bear arms and “the security of a free state.” Without access to guns for a militia, Americans believed they were vulnerable to oppression.
- In England, Catholic rulers prohibited their Protestant subjects from owning firearms, and the English Bill of Rights corrected that injustice in 1689.
- Similarly, the U.S.
- Bill of Rights included bearing arms among the rights “of the people,” not just government militias.
- In Heller v.
- District of Columbia (2008), the Supreme Court ruled that the Second Amendment protected an individual right to own guns, rather than the collective right of a state to have a militia.
According to Yale law professor Akhil Reed Amar, “The framers recognized that self-government requires the people’s access to bullets as well as ballots.” While the Supreme Court has decided that the Second Amendment guarantees an individual right to bear arms, the Court has also conceded that there are some instances (e.g.
Which is the most important rule of law in the Constitution?
Rule of Law And Indian Constitution – Rule of law has no fixed articulation in the Indian constitution though the Indian courts refer to this phrase in variety of its judgements. The maxim ‘The King can do no wrong’ has no application in India and all public authorities are made subject to jurisdiction of ordinary law courts and to the same sets of laws.
In Indian constitution is the law of the land and prevails over Judiciary, the Legislature and the Executive. These three organs of the state have to act according to the principles engraved in the constitution. Under the Indian constitution the rule of law is incorporated in many of its provisions. For example the object of achieving equality, liberty and justice are reflected in the Preamble to the Indian constitution.
Article 14 guarantees right to equality before law and equal protection of law. It states that no one shall be denied the equality before law and the equal protection of the law by the state. The direct connotation of these words provided under Article 14 is that the law is supreme and there is no scope of arbitrariness as everybody is governed by the rule of law.
- Law treats everybody equally without any biases, which is the basic requirement of Rule of Law.
- In the case of Maneka Gandhi v.
- Union of India the Supreme court in clear words observed that Article 14 strikes at arbitrariness in state actions and ensures fairness and equality in treatment.
- Rule of law which is the basic feature of the Indian Constitution excludes arbitrariness.
Where there is arbitrariness there is denial of Rule of Law. Art 15, 16, 23 further strengthened the ideal of equality by the incorporation of protective discrimination as a means of ensuring equality amongst equals. Article 13 of the Indian Constitution is another example which upheld the doctrine of Rule of Law in India.
- The “laws” defined under Article 13 as rules, regulations, bye-laws and ordinances can be struck down if they are contrary to the constitution of India.
- In Keshavananda Bharti v.
- State of Kerala, the Supreme Court has included the Rule of Law as the basic feature of the Constitution.
- In this case, though the Supreme Court upheld the amending power of the Parliament which extends to every Article provided under the Constitution but has limited that power by providing that such power cannot be used in amending the basic feature of the Constitution.
Fundamental rights are universal and inalienable rights, Such fundamental rights can only be protected by the state that respects the Rule of Law. Fundamental rights are provided under part III of the Indian Constitution. Such Fundamental Rights cannot be abrogated and can be enforced under Article 32 and 226 of the Constitution,
The Indian Constitution is the supreme law of the land and every law has to be in conformity with the Constitution. If any law is in violation of any of the provision of the Constitution, especially the fundamental rights shall be declared void. One of the basic postulates of the Rule of Law besides justice and equality is Liberty.
The fundamental right to life and personal liberty is provided under Article 21 of the Constitution. This Article postulates that no person shall be deprived of his life and liberty except by the procedure established by law, thus making the law supreme.
Such right also guarantees that no person is convicted except for the violation of law which is in force at the time of commission of an offence and not for any other act. The principle of double jeopardy and self-incrimination is also well recognized in the Indian Constitution. Article 19 which provides various freedoms to the individual is again something which runs on the principles of Rule of Law as these freedoms can only be curtailed on the grounds of reasonableness which should be satisfied on the basis of Article 14, 19 and 21 of the Constitution.
These three articles are so essential to the Indian Constitution that they are often called as the Golden Triangle Articles of the Constitution. In E.P Royappa v. State of Tamil Nadu & Another The Supreme Court held that for the state to justify its action of curtailment of fundamental right it has to fulfil all the requirements provided under Article 14, 19 and 21.
Another significant derivative of rule of law is judicial review, Judicial review is the essential part of the rule of law. It not only protects the constitutional principles but also checks administrative actions and its legality. All actions of the state authorities and bureaucracy are all subject to judicial review and are accountable to the courts for the reasonableness of their actions.
These are the essential ingredients and the basic assumption of rule of law and not of men in all civilized nations. The Indian constitution has also provided adequate provision for the independence of judiciary as it is the guardian of the constitution and fundamental rights of the citizens.