Undergraduate: TU918, TU904, TU115 : “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” (Frederic...

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Undergraduate: TU918, TU904, TU115:


“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” (Frederic Bastiat,The Law, 1850)

Consider Bastiat’s above quote in light of the claim by Hart one must choose to disobey unjust or evil laws, not deny their existence. In your answer, offer an account of Fuller’s response that there is a fundamental conceptual nexus between law and morality

Answered 32 days AfterDec 30, 2021

Answer To: Undergraduate: TU918, TU904, TU115 : “When law and morality contradict each other, the citizen has...

Dr. Vidhya answered on Feb 01 2022
112 Votes
LAW, MORALITY AND JURISPRUDENCE: A CRITICAL APPRAISAL
Table of Contents
Introduction    3
The Background    3
Law and Morality: Interlinking Values    4
Legal Positivism and Directives    5
Utilitarian Perspectives and Legal Order    7
The Morality Perspective    8
The Absolute Assumptions and Morality    9
The Perspectives of the Lawyers    11
Conclusion    12
Bibliography    13
Introduction
The behavioural approach of human beings goes through several assumptions, which help them define the ways of living. The existence of law and order is one of such notions, driven from the ideology of helping people understand the value of order in society. Since the primitive age of human civilisation, various forms of legal system have dominated globally such as Greek, Roman, Medieval European and modern legal system
as well.
However, the core question for all these legal systems has remained intact and that is to see how far law and morality work parallel in society. Modern theorist Justin perceives law as ‘just the law and nothing else that people should follow’. There is no link of morality with it. The theorists such as Fuller and Hart, however, believe in some other perspectives in this context. The following is the investigation of the link that law and morality contain along with the question that no matter how complicated any legal system is, people have to abide by the rules of absolute law.
The Background
In the context of understanding the question of law and morality, this is necessary to go through how they are linked together before separating them, as per the perceptions of legal theorists such as Hart and Fuller. The system of law has a definitive approach, which flows through the concept of justice. One must understand here that legal system and justice are two distinctive ideas and achievement of both in all cases is literally impractical. A reference to this can be sourced from the Greek legal system where Kings worked under the advice of their Senate.
However, not always, the opinion of senate was precisely correct about the matter and it, at times, led to confusing or even wrong conclusions. In some other conditions, the kings would go rogue, determining the cases brought before them individually, regardless of the opinion of the senate provided to them. Thus, in terms of justice, it would not prevail in cases mentioned above. The system of order in society has worked throughout the Greek and Roman history—and even in the medieval period of Europe—in the same way as mentioned here.
Therefore; calling some legal system as absolute is simply an understatement; there is no such factor in legal system that can make it absolute in nature. At times, faulty decisions, biased perceptions and even personal ambitions have dominated the decision-making of the rulers of the past. Therefore, justice is something that is closely linked with morality instead of law and order because legal system is a way to govern people.
It is not the method, which can satisfy their moral values overall. When people, in general, perceive that the justice is not established, their feelings against the legal system surge up and they collectively take actions against it. Historical evidences are many where general mutiny has resulted just because of unfair legal practices of the rulers of all times such as Greek or Roman.
Law and Morality: Interlinking Values
There are multiple levels of understanding how law and morality are interlinked with each other. It appears that the justification of the law philosopher Austin challenges the perspectives of Hart and Fuller both. When it comes to legal assumptions and their proper implications, Hart is of the view that the notions of morality and law are not distinctive features.
There is no reason, whatsoever it may be, that cannot define ‘’legal morality’ of the system. To understand this concept, it is preferable to overview the conventional approach with which, legal theorists tend to define law and order in society. There are two basic questions, which are investigated with a view to put legal system as the core strength of any ideal society.
At first, the normative question should be asked about the general perception of law such as how law should be defined and how law and order should be deemed essential for the public wellbeing. This normative discourse leads to the definition of law as something that is necessary for the development of society as well as to establish justice in the best manner possible. The legal frameworks should be structured around this concept.
However, the second question in this context relates what ‘ought to be’ the content of the law because it is the content of the law that is particularly important for people. In general, people understand it well that they need law and order so that their rights of living are secured as well as the equality is established, as per the social order.
In other words, when it comes to understand law as necessary, people simply provide their consent that there should be some system for making legal system possible. However, the content of the law must go through a specific investigation based on the social, political, economic and even psychological needs of people. Hart perceives this as an essential part of the morality.
Further, in the same context, Fuller, another renowned legal theorist and philosopher, believes that when legal system is assumed, it is implied that it should be capacitive enough to contain the moral satisfaction of people. In other words, every legal system should be powerful enough to establish social order, which is morally satisfying to people. When people show their faith in some kind of system, they expect that their faith will work positively for them and they will receive social equality and a justifiable legal system.
When this factor misses, the stance is taken against it in the form of disobeying the law and order of the society. Therefore, it is significant to define law and its approach but at the same time, the content of the law should be designed in the way, which is morally satisfying. Fuller attaches morality with the law and examines that when law becomes weak to satisfy the morally scalable aspects of general people, they tend to take the opposite direction and simply revolt against the existing system.
Legal Positivism and Directives
The contextual understanding of legal positivism emerges from the analysis of law and morality that professor Hart gives. His five contention based approach defines legal necessity and its positioning with the moral values of people. He elaborates that there is no necessary link between the law and the morality for people because law is one of the mandatory frameworks to keep social order intact.
However, known as legal positivism, this theory does not relate morality with law. Instead, this is more such as some kind of coincidence that people have regarded law and morality together. For example, the objective of law and order includes the word ‘’order’ in it and this order is established through making people accountable for their wrong actions.
If any doer of wrong is put to legal process, certain provisions will apply on him and he will be held guilty for his actions. This course of law and order has been followed for centuries even in conventional or in modern context. The legal directives do not comprise of any moral junction here; for Hart, justice is like the absolute truth and it gives people the sense of desired security.
However, given that the legal proceedings have no essential with morality, Hart also agrees to the concept of fear that amounts in the emotions of people. He is of the view that people must abide by the legal system because this act of discipline keeps them refrained from any wrong actions. It develops fear in their minds against any act that they are able to do but due to the fear of the law, they do not attempt it.
This condition of fear for doing the wrong or receiving penalties...
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