What Is the Nature of Laws Affinity with Goodness - Assignment Example

GOODNESS AND THE LAW Name: Tutor: Course: Institution: GOODNESS AND THE LAW Introduction Natural law has time and time again held that the rules of law and the aspect of moral rightness are interconnected (Creasay, 2013). This is to say that the rules and regulations present within statutes and other forms of legislation make up the law and the need to abide by the rules in a way that the safety of all is safeguarded makes up the moral aspect. Basically, for laws made by man to hold root in the society, they must in one way or another conform to the rules that are considered much higher law, for instance, religious law (Creasay, 2013). St Thomas Aquinas, among one of the many scholars on the origin of law portrayed this aspect as a pervasion of law if it had no moral aspect within it. Natural law theory has in itself struggled to show the essential connection that exists between law and the aspect of morality, with the likes of H.L.A Hart taking a positivist approach against such connections (Vallentyne, 2005). Fuller however responded to Hart’s decision and other writers such as Robert Urges have taken stands on the same matter over and over again. Generally, the key question as to whether Nature of law has any affinity to the concept of goodness has raised various concerns and shown possible consequences to the same along the way. Positivism emphasizes the importance separation of law and morality because those that believe in natural theory feel obliged to obey law only when it is in conformity with their individual beliefs (Vallentyne, 2005). Positivists however, do not believe in this kind of religious appeal as they believe that the law is enacted and passed, after which it remains binding unless if appealed. Legal positivism therefore holds no room for moral obligations and at the same time there are socially accepted norms that are considered as rules of law and remain as such and the mode of application is not referenced to any law above it. Jeremy Bentham and H.L.A Hart are two of the theorists that made no effort in assimilating natural law in any aspect of leadership or government. Austin however, supported Bentham’s theory but was more supportive of there being a backing of some kind of punishment that is effected on those that break the law (Vallentyne, 2005). Generally therefore, the above shows that the debate as to whether morality and goodness has any importance in law formation and justice has been going on for long. There are certain instances however that still emphasize on a stronger affinity for goodness in legal aspects starting from the response by Fuller to Hart and the criticism made by Robert urges in his book, ‘ knowledge and politics’. Below are two such references that show the general aspects displayed in two case scenarios that seek to show the link between the societal needs and beliefs to the political aspects and how the value of morality and goodness goes hand in hand with the same.  Part 1 The concept on what is considered good and what is not has been a debatable aspect in law making over time. There have several basis that theorists have come with that tend to favor the assumption that the desires of the people and the benefits derived from satisfying these desires is what elaborates the acceptable moral extents (Vallentyne, 2005). The likes of Hobbes, Benjamin and Austin were among the key pioneers of these theories but Hart had a response to each question that tested the affinity of goodness in law and morality in the same. In response to Hart however, Fuller felt that that there was more importance that came with a combination of goodness and justice that the constant allowance of prevalence of evil alone (Rundle, 2009). In the statement’ “I shall have to rest on the assertion of a belief that may seem naïve, namely, that coherence and goodness have more affinity than coherence and evil.” (Fuller, “Reply to Hart”, 636)” the nature of law and the relationship with morality is evaluated as below. Fuller’s faith constantly stated that there is indeed a relationship between law and morality, between coherence and goodness. Fuller was always known to overstate his position on the law and he commonly agreed that when men are faced with the constant need to justify their Actions. He adds that men tend to direct their defense to an extent that satisfies the goodness of the matter because there is faith that in all ways, goodness and fairness prevails. The affinity of law in Fuller’s view therefore symbolized that there is more weight that comes when coherence and the aspect of what is good is put together more than when coherence and bad is used. Further, the defense by Fuller emphasizes that it is easy to tell the truth consistently as it comes naturally with human nature unlike lying because the consistency in lies slowly dies along the way. In morality and the law, certain standards are placed that limit the options that most people use to justify actions (Fuller, 2003). The assumption that most people turn to the good may not be constantly true or supported, however, the chances of evil triumphing in justice is not easy unless if supported by a chain of other lies. For this reason, one may say that fuller’s perspective may be justified in a way and that it is difficult to practice unjust deeds when supports by clear and active rules that may make evil possible but limited. Hart ones stated that what is considered immoral may in one way or another, not be considered law or lawful in any case. In this scenario, he used two criticisms; one is that separation of law and what is moral enables men to see very well the morally wrong issues in the society (Kraut, 2007). Bentham and Austin first advanced this theory and in more ways than one, there was the ability to identify the issues posted by there not being rules that followed a moral code. Hart further holds the notion that it is wishful thinking to assume in any way that the two may fit in a single system and has in more ways than one referred to fullers idea as a ‘romantic’ kind of approach where there is need for two to combine but faced with matters of the world that bring disagreements along the way. Fullers approach also views that in other circumstances, trying to adopt goodness in justice and vice versa may be a harder task than may be expected but is not against the whole aspect (Rundle, 2009). This is of course with regard to the ability of both not being able to be present within the single system and the likelihood of one being under more pressure. This kind of pressure may result in sacrifice and favoring of one side more than the other and for this reason once again the affinity of goodness diminishes within the context of justice (Fuller, 2003). There is however optimism in hoping that eventually, something will come out of the deal but then again, this is the same optimism that Hart is largely against and still claims to be romanticism. Part 2 “The idea of the good...rests on the belief in a correspondence between being and goodness. This belief is neither arbitrary nor capable of conclusive proof. To accept it and to act upon it is to run a serious risk.” (Unger, Knowledge and Politics, 248) Unger’s articulation is a philosophical approach on the human nature and the politics that come with it. His elaboration is in support of the works of Hobbes and john Locke among others that seeks to address the issues of society and politics (Kraut, 2007). His description creates an understanding of man and the values that considered bound within the society. The theory of good has similarly been addressed with reference to the isolation and self sufficiency in an individual that are based on the religious aspects and the general nature of man. The above statement is Robert Unger’s perspective on liberalisms whereby, he confirms that even politics is within moral and religious aspects. He is a strong believer that universal laws are created in modes that make them less concrete hence informal and to some extent abstract (Fuller, 2003). Unger relates the concept with the Christian perspective on resurrection and incarnation as God who has the absolute power had the ability to become man and manifest in various images and positions. Unger theory is supportive of the aspect of self whereby, there was realization of national harmony for sympathy of others and at the same time, there are communities that share values protecting domination and individualism (Kraut, 2007). Overall, he recognizes the need for man to find a neutral place between theories of existence of divine presence and how it is manifested in the material world. On the other hand, realizing the existence of what is seen as beyond the recognizable physical level. Unger is attacking a group that he refers to as one that is centered on liberalism which refers to the political aspects founded on the belief that both liberty and equality should go hand in hand (Hart, 1961). Equality however incorporates both goodness and justice hence the essence of social liberalism has once again highlighted the importance of both in any community or leadership context. Unger’s criticism on the modern philosophy however requires an expansion from just liberalism, to incorporate a more acceptable approach to finding the resolution of finding a solution to many other problems (Rundle, 2009). Consequences from the relationship with the law Numerous consequences come out of the presence of a relationship such as the one above. In the same case, there are those other aspects that show that even if there is a strong advocating towards law and morality, in some aspects, it may fail to show. Firstly, the existence of many unjust laws in some legislation today that cause human harm or death of many is a clear sign that despite the awareness that morality is important, people still tend to ignore and create rigid rules and punishments to the breaking of the rules (Creasay 2013). Secondly, on the positive hand, there are those laws that tend to show that there is importance in defending the basic values of all people especially in matters of rape, malice, defamatory statements, fraud, bribery and many others. All these show that there is awareness of possible breach of moral values and that both this awareness and the safeguards to protect them when working together becomes an agreement that they work together. In other words, there are instances where courts of law have resulted in looking at the intentions behind an act so as to rule whether the perpetration of the crime was done in the correct state of mind. This shows that the values inside a person’s beliefs, heart and societal affiliation have an impact on the general application of the rule of law. The offenses in this case are able to be punished because there is a belief or a higher rule that has already considered them wrong and hence law alone cannot be used to govern this kind of scenario. The fear of punishment has in many ways proved that there is a certain belief that separates what is right and wrong. There are people that believe in being governed by what is true and noble and there are those that believe that there is no such thing hence are constantly caught up in the wrong. The ability to have a habit-like response to issues that seems almost natural once again shows the possibility of there being both the ability to act without the necessity of compulsion. Morality in more ways than one may influence law in such a way that countries or regulations may find themselves comparing each other and thus it is possible to deduce those that abuse leadership and what not. There are many countries that believe in the sanctuary of some actions that in many other places, the same actions may be very illegal and thus a relationship between the two could help identify this (Creasay, 2013). An instance is how there are countries that constantly fight within themselves but at times they start to notice the difference in other countries and the benefits that the peace brings. Last but not least, the opportunity to incorporate moral rightness in the expression of morality has enabled a standard codification of rules in a way that different legislations do not find themselves advocating for varying ideologies (Hart, 1961). Reliance on morality alone may be problematic as there may be the probability that of varying beliefs maybe due to different religions or societal affiliations that may in some way deter the growth or the enhancement of the legal sector, the government, leadership or the political aspect (Rundle, 2009). Lack of proper understanding in this area therefore may bring about disagreements and many other issues. Conclusion In conclusion, it is evident that the aspect of law and its connection to morality has been an issue over time and many scholars and authors have established varied and detailed explanations on the importance of the two. The natural law theorists have repeatedly established that there are numerous consequences that come with over reliance on either of the two more than the other. Morality may favor beliefs that may not be acceptable in another societal aspects and thus over reliance on goodness alone may question the standard used to measure just what is good and what is wrong (Vallentyne, 2005). On the other hand, the over reliance on rigid laws and regulations may to some extent have negative effects on those they control and may also affect the general importance to the people (Vallentyne, 2005). The ability to tear apart the rigid and unrealistic laws from the considerate laws similarly, is another added advantage to the whole idea of justice that is represented in this context. The ability to have a codified system however, is very important to the general justice and government system and in this context morality may not look like a viable solution to the issues of injustices (Kraut, 2007). This is because of the varying standards in the society that create a difficulty in knowing what is right and what is wrong. The references above therefore have shown that the affinity for morality is still high in the justice system because it rules out the possibility of heartlessness and the control of rigid and archaic rules (Kraut, 2007). Fuller’s response to Hart’s ideology has repeatedly been used by many legislations and it is because of this that the connection of law and goodness has been made possible. References Creasay, J. (2013). Good And Justice. Looe, Cornwall, House of Stratus. Hart, H. L. A. (1961). The concept of law. Oxford, Clarendon Press. Himma, K. E., & Bix, B. (2005). Law and morality. Aldershot, Ashgate. Fuller, L. L. (2003). Positivism and Fidelity to Law: a Reply to Professor Hart. Philosophy of Law and Legal Theory : an Anthology. 91-115. Fuller, S. (2007). The knowledge book key concepts in philosophy, science, and culture. Stocksfield [England], Acumen. Kraut, R. (2007). What is good and why: the ethics of well-being. Cambridge, Mass, Harvard University Press. Lloyd of Hampstead, D. L. (1964). The idea of law. Baltimore, Penguin Books. Rundle, K. A. (2009). "Forms liberate": Reclaiming the legal philosophy of Lon L. Fuller. Thesis (J.S.D.)--University of Toronto, 2009. Witteveen, W. J., & Burg, W. V. D. (1999). Rediscovering Fuller: essays on implicit law and institutional design. Amsterdam, Amsterdam University Press. Vallentyne, P. (2005). Equality and justice. New York, Routledge. Read More