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Free «Philosophy of Law Essay» Essay Sample

H. L. A. Hart has distinctively proposed that violence and forced actions alone do not make law. An organized structure of systematic terror will by all means force the compliance from individuals and citizens of a specific state. He uses an illustration of a gunman using terror and death threats forcing people to comply with his/her demands. However, such a system of terror cannot be regarded as a legal system but for further conditions to be met. On his account, H. L. A. Hart has explained that these further conditions concern the attitude of the officials involved. There can only be a legal system where state officials take an internal point of a view towards the law, which is to mean, when officials see reasonsfor enforcing and obeying the law. These reasons give a rise to an obligation (Hart 151). H.L.A. Hart has explained “being obliged” as being forced to follow a particular law because of the fear of being sanctioned or punished. Being obliged implies that individuals follow the specific laws since they are authoritative by their nature. In contrast to the above, “having an obligation”, according to H.L.A. Hart, means that an individual follows the law made unequivocally without being coerced or without being directly subjective to the fact that disobeying the laws attracts some corresponding punishments. It shows that the individual obeys the law not because it is the mandate, but because it is essential for building a harmonious society. The one has enough reasons to follow the set rules. Hart further elaborates that laws imposing some obligations to people are referred to as the primary rules of law. On the other hand, secondary rules of law are the ones necessary in giving an effect or an authority to the primary rules. Secondary rules are needed to amend the primary rules if they are discovered to be inconsistent and ineffective (Hart 99). Secondary rules also help providing some interpretations to the existing laws and solving different disputes on law interpretations.

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Socrates has put forward an argument to establish the people’s obligation to obey the law. He has helped to answer to the question whether individuals have an obligation to obey any law, no matter how unjust or evil. This occurs due to the fact it is a valid rule of the established legal system where people are physically located. In his argument from gratitude, Socrates presents that individuals have a moral obligation to obey the law. It is a matter of showing the gratitude to the state. He has reinforced this argument with an illustration between a parent and the children. Socrates uses an illustration of a child-parent relationship. Assuming that the child receives good benefits; and that the parent has the child’s interest at heart, the child should be grateful to the parents for all of the benefits they have received (Christopher and Simmons 111). The state has given its citizens a lot of benefits; therefore, as individuals follow the laws that the state is imposing on us, they do so as a sign of gratitude. According to Socrates’ argument, following the law is a matter of paying back the state for the benefits it has given to its citizens. However, this argument attracts a lot of criticism. This theory implies that only when benefits are being issued should there be a counteraction of showing the gratitude. Another shortcoming of this argument is the fact that it is not always true that only the citizens benefit from the state. It is worth noting that the state and its citizens have a symbiotic relationship where one needs the other one for the continual existence (Richard 89). The state also has received benefits from its citizens through such activities as the payment of taxes among other things. The illustration above also has some shortcomings in that parents are the only issuers. Meanwhile, children always receive without necessarily giving anything in return. The state as seen above is different from such settings. Therefore, this reason is not fully valid to illustrate why citizens are obliged to follow the law.

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Propositions of law can be very abstract and general. They are about how things are in law, not about how they should be. Yet, it has proved extremely difficult to say exactly what it is that they have described. “Aesthetic hypothesis”, according to Ronald Dworkin, has stated that the audience does a critical interpretation to work of art in order to make the best appreciation of it (Dworkin 67). When we connect it to the law, we can make some useful legal interpretations by applying the techniques the same to that of interpreting literary works. Dworkin holds that the law must be interpreted based on a literary perspective and not on the supposed intention of lawmakers in making the specific law. With it, we can formulate an unbiased and more meaningful interpretation of law. Ronal Dworkin has also believed that when we interpret law as the literature, we can have a better interpretation of our cultural environment that would lead to a better understanding of the law. Based on the literary concept of a “group chain writing”, Ronald Dworkin has also made a theory known as a “chain of law” as a basis of legal interpretations. In the “group chain writing”, writers must write the next chapter of the novel based on the previous chapters, where the writer writes and interprets at the same time. The “chain of law” theory holds the same concept. Lawmakers must critically interpret existing laws in making the new ones. It signifies how complex a lawmaking process is (Duong 101). He further states that the interpretation of the text attempts to show itas the best work of art it can be. The pronoun insists on the difference between explaining the work of art and changing it into a different one. Therefore, in order to make a clear interpretation of law, a legal consultant must in the best of their capability to apply literary styles so as to get the interpretation well.

Catharine MacKinnon is a liberal feminist being of the opinion that the liberal conception of the state is at its best when the state offers freedom to citizens through non-interference. As seen in her book, Towards a Feminist Theory of State, what she means is that freedom could only be attained if the state does not directly interfere into the affairs of citizens (Catharine 123). In a liberal form of government, there is no absolute control over the lives of citizens living within the state by the government. With this situation, there would be a great problem in reinforcing the status quo of the society. Because of the government’s lack of control over its constituents, many uncertainties might happen which would deter the current status quo of the state. Additionally, she claims that liberalistic leaders usually have a tendency of making life and death situations that may have drastic effects in the status quo of the state. She has argued that the society is dominated by males. They determine most of the actions. According to her, for any woman, the private is a distinctive field of intimate violation and abuse, neither free nor predominantly personal. She further has put forward that the men’s sphere of private freedom is imposingly the women’s area of collective subordination (Rawls 34). According to Catharine MacKinnon, these features are the problem that only serves to maintain the status quo. Pornography and other moral laws, for example, are biased and while to men they are being the entertainment, to women they become a torture. The politics of the state then help to prolong the problem and in her argument, Catharine MacKinnon suggests the total abstinence by the state from social matters. The nature takes its course in order for freedom of citizens to prevail beyond the wishes of few people in the ruling class, particularly the political elite.

 
 
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According to Joseph Raz, the law that clearly runs counter to our independent moral reasons provides no moral reason at all to conform. Having an obligation to obey the law connotes more a moral than legal aspect. It does not speak that laws must be followed because it is what the state wants us to do. Also, it has some corresponding punishments for disobedience but because it is what our conscience dictates us. It means that we are not driven by some external forces but by our inherent will to obey the orders (Joseph 29). Having reasons to obey the law, on the other hand, is somehow a shallow concept. It only signifies that we have to follow laws because of some factors that may affect our own self and not because it is our moral obligation. Joseph Raz, in his claim, has stated that there is no obligation to obey the law. He has stressed that each person has a right to autonomy. Autonomy entails freedom from obligations, individuality and self-sufficiency. Joseph Raz has argued that laws are just the formalized norms and are not a moral obligation. Having an obligation to obey the law is different from having the reason to obey the same in that, it means that one must by all means adhere to it while having some reasons. It means that the individual can provide several justifications in his/her head on why he/she should follow the law as stipulated (Hassoun 56). Raz has no reason to deny that someone in a position to impose the sanctions that could compel the obedience of another one. In Raz’s view, however, such authority does not have legitimacy. Thus, although law does not need to contain any particular moral content or obligation to the individual, it must meet a certain normative standard. If it is authoritative at all, it also gives the individual a reason to see it through.

Reasoning is an intellectual act associated with thinking, cognition and intellect. According to Edward Levi, legal reasoning is reasoning by an example. This occurs due to the fact that in all instances laws are being interpreted based on the outcome of a previous case making it as an example. But the attention must be paid to the process. He believed that the interpretation of laws progresses or evolves over time (Vern 18). The obligation of law depends on the quality of legal reasoning. Laws try to utter the ideas of the society and even when described in general definitions, in a statute or a constitution, they are shaped for the particular issue. The rule of law demands that the similar cases should be solved in the same manner. Each issue should be solved depending on its advantages, and that decision-making processes should correspond to the applicable rules of a procedure and facts. Deciding the reasoning behind such decision-making as open and transparent to scrutiny changes the decisions away from a simply subjective preference and towards the objective reason. In his argument, Edward Levi has pointed out that as various cases are encountered and the decisions given, many aspects of law are being tackled as refined. They continually are being applied to future cases. This concept is comparative to the evolution of scientific theories, where a more complex one arises from the theories previously formulated. Reasoning, if to provide an example in the law, is a key to many things. It indicates the hold which the law process has over litigants (Levi 109). They have participated in the law-making process. They are bound by something they have helped to make. Moreover, the examples or analogies urged by the parties bring into the law the common ideas of the society. Although Levi is right that all legal reasoning is the reasoning by an example. A judge is not totally bound by a previous case of the decision. The judge may found some loopholes in the previous decision and might still rely on the legislated rules. Legislated rules can also be applied in such cases that haven’t been dealt before, where the new interpretations of law must be made.

According to Robert Cover, in a paeiedic legal order, law is the resource of greater efforts of the society to give the meaning to life. It is described as a “strong community of the common obligation” In accordance with this system, the discourse is initiatory, celebratory, expressive and per formative, rather than critical and analytic. In the same system, cultural values bind people through the system of moral ties into the community (Cover 10). Such things binding people form the normative worlds, in which the law is predominantly a system of meaning rather than an imposition of force. The imperial legal order, on the other hand, is described as having the norms and laws enforced by institutions. In the imperial model, norms are universal and enforced by institutions. The imperial discourses gain the validity through the external objectivity. These are the practical effects in the material world. Simple societies tend to have something approaching a unitary value system. Complex societies, the modern nation-state, are predominantly imperial where there are many competing values’ systems, but few of them are being enforced by law. Cover has found a radical dichotomy between these two systems, paeiedic and imperial. The many values in the complex societies that are not enforced by law have a “destabilizing influence upon power”. Complex societies have many countercultures that tend to destabilize social structures through which the elites exercise power. There the state is the paramount structure. It is impossible to have some purely paeiedic nor purely imperial legal orders because there is no such society where there are the people with the same patterns of behavior. Even though the society shares the common culture, people within it do not have the same beliefs and perspectives (Danchin 44). Cover has insisted that the enactment of law by the community practices is in fact the "law," rather than just "customs" or "practices." Those terms have, in the American legal parlance, gained an anthropological gloss. This makes them less than true peers of the "real" law, assumed to consist only of such positive enactments as statutes and constitutions or any other forms of written law.

   

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