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Free «Philosophy of Law» Essay Sample

When studying the concept of law, a question often arises; what is law? This question can be answered in different ways but two influential theories are used in this paper to reflect the ideas of the positivists and the naturalists. The natural lawyers are represented by Saint Thomas Aquinas. They maintain that there exists a connection between state laws, eternal laws and morality. When Saint Aquinas defined the concept of law, he defined it as a measure and rule that determines an act where an individual is restrained from acting or induced to act in a certain way (Aquinas 52). Therefore, a law can give the right to act in a certain manner or restrain people from doing something they would have otherwise done. He continues to mention in a utilitarian view that a law is nothing short of an ordinance of reason for a common communal benefit (Aquinas 52). In his statement “An unjust law is no law at all”, Aquinas means that if an unjust law is implemented, the society is not compelled to follow that particular regulation. No one is under obligation to follow a law that is unjust and contrary to all human good since this would be an act of coercion and violence (Adams 103). There is a moral imperative not to abide by laws contrary to divine good. According to Aquinas, demonstrable laws are the laws that do not need to be set and are common for all nations. These are the laws of God and are just in their own way. An example is the inborn conscience of good and bad. On the other hand, determined laws are the positive laws set by humans. These regulations represent the requirement of a person to determine certain matters according to their own reason. A law on religion restriction is a good example. Therefore, the difference between determined and demonstrable laws is the quality where one is natural, and the other is man-made.

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According to Lon Fuller, nothing counts as law not unless it has the ability to perform the essential function of law, which is guiding. For a law to perform the function, it must be able to satisfy certain principles. It must be expressed in a general term and publicly promulgated, the law must be prospective in effect and be expressed in terms that are understandable. The rules must be consistent with each other and not acquire conduct that is beyond the power of the affected parties; it must not be changed every now and then, and finally, a regulation must be implemented in a fashion consistent with its wording (Lon 82). In his view, Fuller believes that if any rule posses the above principles, then it can fully achieve its goal of maintaining social order. He terms the principles as internal to law in that they are built into existence of requirements for law. The above-mentioned internal principles bear a morality since a law normally has positive moral values. This is because a law has power to conduce states of order while respecting human autonomy through guidance (Karl 1223). Due to the fact that no system can achieve its objectives without applying the above principles, they make up an internal morality within the concept of law. Since the principles are built into the required conditions for law, they are internal and so give a representation of the connection between law and morality. Unlike most of the naturalists, Fuller aims to replace the substantive content of positive law by a procedural content of legal rules. He focuses on the real process i.e. the procedure (Lon 82). He argues that law is a process, a procedure as opposed to the former system of substance that is forced. He states that continuing to follow natural laws in a changing world is naive and illegitimate. Fuller, therefore, guarantees that any content of specific law is not only moral but procedural.

John Austin's specific theory is at most times referred to as the command theory of law since he centralizes the concept of command in all his accounts of law and goes on to maintain that every law is a command, even if they are not necessarily an order. A general command is habitually obeyed by a large group of the population; even those not in the habit of obeying any other determinate individuals (Paulson 150). Austin, in his philosophy, rejects the assertion of natural law theory that positive law is derived from natural law. As an alternative, Austin defines a law as any species of a command, direct or indirect, given by a sovereign individual or body that often has a purpose and/or power to impose punishment. The law, as we know, is a coercive guidance or method of gaining social control, and no one has an option to evade following the stipulated legal requirements. According to Austin, a command usually has two aspects: it can signify a desire or any human wish conceived through a rational process, and it can also exact evil or harm on individuals who do not succeed in satisfying this desire. For that reason, Austin’s definition of law advertently rules out constitutional law, customary law, and international law since they are not necessarily commands in any sense. If the supreme ruler has fixed a sanction, an individual is under a lawful duty. Kelsen, on the other hand, does not clearly describe how the legal system creates law or why officials behave in a certain way. He simply assumes an epistemological postulate, “The Grundnorm” (Hart 182). Therefore, according to the theories examined above, it follows that not all forms of legal positivism are necessarily command theories, and also by extension, not all command theories of law are necessarily forms of legal positivism.

   

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