ESSAY
Is law necessary for the ordering of society? – “Societies think they
operate by something called morality, but they don't. They operate by something
called law. x x x The question is not ‘Was it wrong?’ but ‘Was it legal?’ and
not by our law, but by the law at the time. x x x Oh yes, the law is narrow.”
The above quotation from the 2008 film The Reader succinctly articulates the notion that society needs the
law in order to function effectively. Law is a cultural force, one of many, but
stronger than most, and is thus determinative of the shape and social relations
in society. Law is also rigid and narrow, and thus sets a definite framework
for society. It needs to be such, as it should regulate the other facets of
society, so that all may enjoy the blessings of liberty. This materialist view,
along with criticisms of this view, will be further discussed in my succeeding
answers in this examination for Legal Philosophy.
What is justice – There are as many
definitions of justice as there are philosophers. One of the more well-known
and well-loved notions of justice is justice as the ultimate manifestation of
the divine will and eternal law, as some followers of Sts. Thomas and Augustine
would follow, who in turn follow the Greek traditions of Plato and Aristotle,
who, in a nutshell, describe justice as
the ultimate virtue. I would like to suggest, however, an alternative view
of justice in line with my own leanings towards the Left: Justice is a perception of social relations in balance. It is one
aspect of a sense of social cohesion or integration. The radical broadening of perspective which
sociological interpretation seeks makes it possible to enrich understandings of
the social condition of justice. The
consistent focus of sociological inquiry on the social, the systematic, and the
empirical provides the essential dimensions of this enriched
understanding. Sociological inquiry
cannot abolish disagreement as to what justice demands in any particular
situation. But it can reveal the meaning
of justice claims in a broader perspective by systematically analyzing the
empirical conditions that provide postulates underlying these claims. Rejecting
the view that any particular natural morality exists, justice eludes a
particular definition for the social view of things.
The law as the
will of the State – Law is a combination of the rules
of behavior (norms), established or sanctioned by state authority, reflecting
the will of the ruling class—rules of behavior whose application is assured by
the coercive power of the State for the purpose of protecting, strengthening
and developing relationships and procedures suitable and beneficial to the
ruling class and the status quo.” By [the base of the superstructure] Marx
means also what human beings do—that is, he refers to their material activities
or ‘production and reproduction.’ But
those, like all human activities, are thinking activities, because it is the
essence of human beings to think about what they do. The distinction between base and
superstructure is not one between matter and does not think and thinking that
is not material. At some time in the history of a State, the practices are put
into words, described, codified, and defended—and those . . . form the
superstructure. . . . The base is what we do; the superstructure is
how we talk about it. . . . It seems
eminently plausible that the base determines the superstructure: Our practices
determine how we describe and justify them.
Intertwining of Law, Religion and Morality – Law, under the view of
the Positivist school of jurisprudence, can only be justified if a contrast can
exist between the moral and legal norms. It presupposes that law is moral by
nature, and such morality is absolute, so it becomes meaningless to demand that
the law ought to be what it already is. In such a case, what is moral is
dictated by the will of God as is made known to men through revelation,
following the religious view of morality. Alexander of Hales, an intellectual
disciple of St. Augustine of Hippo, succinctly articulates: “the eternal law is
the seal and the natural moral law is its impression in the rational nature of
man, which is in turn an image of God.” This immanent natural law, based on the
divine law, can never be destroyed. Good needs to be done: such is the supreme
commandment of God. Good is that which corresponds to nature, and what is
contrary to it is bad. Good is to be done is the same as the realization of one’s
essential nature. Under this view, there is no such thing as a “bad law” or an “unethical
law”; positive law needs to be pertaining to reason, and reason is the voice of
God within men’s hearts. Good is justice, that which corresponds to essential
nature. God is then justice. Men are always in need of a clearly prescribed and
adequately sanctioned system of norms, which emanate from an authority within
ourselves—the voice of God in our conscience—and thus the object of positive
law, combined with moral and the eternal law, is to render the citizen
virtuous.
Immanuel Kant, the greatest German philosopher of the eighteenth century,
evolved his own theory of law—a development of the natural law theory. The source of his views concerning law in his
doctrine of morality: he asserted that morality is based upon a supreme moral
law, which depends neither upon the experience of the practical activity of
human beings nor upon historical conditions and social relationships: it is eternal and changeless. It is neither created nor conditioned by any
person or anything. It exists per se within each individual. It dictates its commands to the individual
unqualifiedly: categorically; wherefore Kant termed these commands of the moral
law ‘a categorical imperative.’
Individuals must carry out the moral law without reference to any
considerations of advantage, interest, or expediency, and regardless of their
own propensities and sympathies. If one
does good to another from pity, love, friendship, or the like, his conduct will
not be moral conduct since he is guided by worldly motives and not alone by
respect for the moral law. According to
Kant, therefore, human conduct is moral conduct if it conforms to the moral law
and is enjoined solely and exclusively by consciousness of moral duty with no
other and foreign motives whatsoever.
The norms of morality are thus isolated from the actual life of human
society and personality: from human relationships and from all genuine reality,
in general—from everything that exists. The
content of Kant’s moral law—expressed in the form of the categorical
imperative, is general and formal in character: ‘so act that the rule of your
conduct may be the rule of each and every one.’
No man can be considered a means to an end; he is himself an end and
must possess an independent value qua individual. Accordingly the categorical imperative of
morality comprises within itself the rule: ‘so act that each man may ever be
regarded as an end, not as a
means.’ Kant thus linked his doctrine of
morality with the idea of the independent value of personality, whose
will—within the moral sphere—is completely free and seeks to fulfill the moral
law—and is not defined by any external causes or circumstances. From these propositions of his doctrine of
morality, Kant draws his doctrine of law: law has its foundations in morality;
the purport of norms of law, as of norms of morality, is that human conduct
conform with the moral law; law differs from morality in that morality is
concerned with inward human experiences, requiring not only that man fulfill
the requirements of the moral law, but also that such fulfillment be motivated
solely by respect for the moral law and by no other stimulus whatsoever;
whereas law is concerned only with external human conduct, being satisfied by
the fact per se of compliance with
the moral law, regardless of the motivation inducing such compliance. The leading principle of law is the freedom
of each personality, wherefore—according to Kant—the essence of law is that the freedom of the one be compatible with
the freedom of each and every one.
DEFINITION OF
TERMS
Physical Law
– The common consciousness of the people (the Zeitgeist and Volkgeist) from
which law originates may be discovered not by the form of abstract notions, but
in the form of a lively intuition about institutions of law in their organic
connection. Savigny stresses that the
common consciousness lies in the biological nature of the people. Hence, Savigny considers the nation as an
organism, that is born, grows, wanes, and dies.
The law is an essential characteristic of this organism. “The law grows together with its waning, and
strengthens together with the strengthening of the nation, and in the end dies
when the nation loses its very nationhood.” Karl Marx described positive law as
“merely the will of [the ruling] class, erected into legislation—a will whose
content is defined by the material conditions of the existence of [the ruling]
class.”
Natural Law – Classical Natural Law Theory provides the traditional
way of viewing the world or reality.
Given the general order of the universe, there exists a natural law
which prescribes a set of duties which men ought morally to obey or comply with
depending on his status or place in society.
Hence 'duty' is the primary moral concept. Man's rights are situated within that general
order, and are ultimately based on his duties.
For Natural Rights Theory, the primary moral concept is that of
'right'. Men naturally have rights. Rights exist in human beings by nature. Rights thus are primary and duty derivative. Duties are derived from the existence of
these natural rights. In particular,
because all men have rights, each man has the duty to respect the other's
rights.
Moral Law
– In some definitions, moral law stems from the Law of Moses, or other laws
that may stem from the intertwining of morality and religion when it comes to
the organization of society and the codification of law. It is also from moral
law that the notions of crimes mala in se are derived; moral law dictates that
murder, adultery or theft are wrong because they are morally wrong. Likewise,
civil laws on inheritance, marriage and divorce may trace their origins in
moral law. In an alternative view provided by German philosopher Immanuel Kant,
a good will is a will whose decisions are wholly determined by moral demands or
as he often refers to this, by the Moral Law. Human beings view this Law as a
constraint on their desires, and hence a will in which the Moral Law is
decisive is motivated by the thought of duty. A holy or divine will, if it
exists, though good, would not be good because it is motivated by thoughts of
duty. A holy will would be entirely free from desires that might operate
independently of morality. It is the presence of desires that could operate
independently of moral demands that makes goodness in human beings a
constraint, an essential element of the idea of ‘duty’. So in analyzing
unqualified goodness as it occurs in imperfectly rational creatures such as
ourselves, we are investigating the idea of being motivated by the thought that
we are constrained to act in certain ways that we might not want to, or the
thought that we have moral duties.
Like natural
law, moral law is never written, unless incorporated by the legislation into
positive law, or that such natural or moral law is embodied into the common law
system of a State.
Divine Law
– Divine law is any law, rule, or system that believes that laws are passed down
by a divine figure to mankind. It is also called the eternal law or the law of
God. The religious view that such divine law is written by God and made known
to man through revelation. As such, it is ultimately impossible to comprehend
fully what the eternal law is; St. Thomas Aquinas writes that “human law's
purpose is the temporal tranquility of the state, a purpose which the law
attains by coercively prohibiting external acts to the extent
that these evils can disturb the peaceful state of the state.”
Positive Law
– Written or common law followed, maintained and developed by a certain State. Following
the Augustinian view, a putative positive law is valid when it does not
violate, infringe upon, or is contrary to the natural rights of an individual;
otherwise it is invalid. Under legal systems that operate with and through a
Bill of Rights, such as in the Philippines and the United States, a particular
law or statute is construed as unconstitutional or invalid not only because it
fails to conform to the valid procedures for the enactment of a statute, which
is known as procedural due process, but also because its substantive content
precisely violates the rights of individuals as embodied in the Constitution,
referred to as substantive due process. However this may be, an alternative
school of thought might raise the argument that positive law is not necessarily
the child of moral law; as with the Jim Crow laws of the old US South and the
Nuremberg laws of Nazi Germany, the laws to which these types of ‘actions from
duty’ conform may be morally despicable.
Two trends are discernible in the
natural law school. The
first—represented by Locke, Montesquieu, and others—based the theory of natural
law on the doctrine of the individual, inherent rights of man and citizen:
immutable, inalienable rights given to him by nature, and incapable of being
taken from him by the state. This
doctrine of the inalieanable rights of the personality found expression during
the French bourgeois revolution (1789) in the famous Declaration of Rights of Man and Citizen; proclaiming man’s rights
to freedom, property, and security—and his right to resist oppression—as
eternal and inalienable. This trend in
the natural law school demonstrated the bourgeois liberalism which demanded
freedom to develop capitalist relationships and private property. The other trend—of which Rousseau is the most
eminent representative—conceived of natural law as a manifestation of the will
of the people, of the popular sovereignty.
According to this view, the rights of citizens merge in the general will
of the people, and the equality of citizens is the basic content of natural
law. From the viewpoint of the materialist doctrine of society, such a theory
is utterly arbitrary: champions of the natural law theory were in accord in
asserting the existence of some rational, eternal, and unchanging law; but when
they were required to define the content of this natural law and to establish
precisely what norms are natural norms, each author proceeded in his own
fashion, and the result was that nothing in the law appeared changeless.
