Law Discussion: Jurisprudence - Essay Example

?"The task of lawyers and judges is to apply positive law. They need not concern themselves with the question of whether that law is just or unjust."Discuss. Legal positivist theorists take a purely clinical or scientific view of the law and its functions. In this regard, law is designed to resolve disputes and is not geared toward deciding morality.1 Thus, positive law theory, unlike natural law theory relies on the authority of the state for the application and interpretation of law, rather than the authority of morality. In this regard, the task of lawyers and judges is to apply positive law. As a result, they do not concern themselves with questions of whether that law is just or unjust. From the natural law perspective, laws are intended to enforce moral codes.2 Thus if, the lawyers and judges are required to apply and interpret natural law, it would be up to them to determine that which is just or unjust. The main question is therefore whether or not lawyers and judges are required to apply and interpret positive or natural law. Positive law is perceived as the antithesis of natural law which in turn concerns itself with moral, religious and political ideologies.3 Therefore in the application of natural law, judges and lawyers would certainly occupy themselves with that which is just and unjust. Theorists have long debated what law is and what its functions are. For natural law theorists, laws reflect moral codes and social consensus as to that which is just and unjust. For positive law theorists, law creates and sustains social order by establishing legally binding rules governing social interactions and for the resolution of disputes.4 Certainly lawyers represent clients who have civil disputes, or clients who are charged with criminal offences and they argue in favour of their clients or the state. In reality, these arguments turn on the letter of the law and do not involve arguments about that which is just or unjust. Likewise, when judges determine the merits of the case, they refer to the law to support the rationale for arriving at a particular decision. Likewise in criminal trials where jurors determine the facts, they are also instructed as to the law before they are retired to deliberate. In this regard, it can be argued that judges and lawyers are charged with the responsibility of applying and interpreting the positive law and thus they are not concerned with questions of that which is just or unjust. Moore argued that positive law is the guiding principle in the interpretation and application of law as it directs courts toward a uniform approach to law.5 In this regard, a positive law approach to law is necessary for ensuring certainty and consistency in the application of law. According to Moore, if natural law theories were used to interpret the law, it would amount to an “ad hoc” system of interpretation where judge made law would be entirely inconsistent and incapable of facilitating precedents. Each judge would establish his own laws with a high degree of uncertainty and unpredictability with respect to outcomes of civil disputes and criminal trials.6 George however, justifies the application of natural law and thus argues for outcomes that are representative of that which is just and not unjust. In this regard, George defines natural law theories as: ...reflective critical accounts of the constitutive aspects of the well-being and fulfilment of human persons and the communities they form.7 Natural theories thus select the primary elements that facilitate “human flourishing” and are thus “prescriptive in our thinking about what to do and refrain from doing (our practical reason”. 8 Taken together, the prescriptive and practical reasoning employed by mankind identifies that which is right and moral and directs man as to what he should or should not do.9 George goes on to state, in identifying principles of morality, natural law include: A respect for rights people possess simply by virtue of their humanity – rights which, as a matter of justice, others are bound to respect and governments are bound not only to respect but, to the extent possible also to protect.10 It therefore follows that natural law is not only a method for interpreting and applying the law, but it is also a mechanism for directing what laws should be created and enforced. Law in this regard is informed by morality, which is in turn informed by man’s ability to reason. When looked at in this way, there is no real difference between the outcomes anticipated by natural law theorists and positive law theorists. Positive law theorists would not oppose the application and interpretation of a law that is founded on moral codes, as long as the law itself is interpreted by reference to the statute or common law creating and developing it. The only difference between, the naturalist and positivists is the actual sources of law. HLA Hart proposed a separatist thesis of the sources of law. In Hart’s separatist thesis of the sources of law, law is distinguished and segregated from morality. More specifically, law is what it is and not what it ought to be as proposed by Austin and Bentham.11 The positive position in this regard is that law is law and whether it is just or not is an entirely different question. Whether or not we agree with the merits or value of a particular law, does not change that fact that it is law.12 Indeed it is common for judges to state that they are bound by the law, however much they may disagree with it. Once a law has been properly enacted, it is not for the judge to change it if it is unjust.13 Moreover, Hart explained that utilitarian values that inform the legal positivist do not discount the fact that laws are quite often informed by “moral opinion”.14 It is also arguable that moral standards have been informed by the law. It therefore follows, according to Hart, that the “content of many legal rules mirrored moral rules or principles”.15 Hart also argued that it is also true that moral standards may be injected into legal systems and may from time to time “form part of its rules, or that courts might be legally bound to decide in accordance with what they though just or best.”16 This is certainly true of laws that confer upon the judiciary a wide discretionary power. For example, judges have wide discretionary power to admit or refuse to admit evidence based on their determination of whether or not the prejudicial effect of that evidence outweighs its probative value.17 Thus, while legal positivist argue for the separation of law and morals or the distinction between what law is and what it ought to be, they do not discount that laws are intricately tied to morality. Where naturalist and positivist part is on what law is and how it should be interpreted and applied. The legal positivist’s perception of law is more consistent with what takes place in a court room. Essentially, lawyers and judges may express a concern about what is just and unjust, but inevitably they are bound to follow the law as it should be. If a lawyer chooses to argue a case on grounds founded on morality rather than law, the judge will inevitably rule against him or her unless by some mere coincidence the moral arguments are supported by law. Likewise, if a judge chooses to decide a case based on morality, that decision will likely be overturned on appeal as it would be deemed an error of law. The appellate court would only confirm the lower court’s decision founded on moral principles if the decision is supported by the law. Thus, positive law is applied in courts rather than natural law. Natural law theories are arguably applicable to human rights and constitutional law. As George informs: By reflecting on the basic goods of human nature, especially those most immediately pertaining to social and political life, natural law theorists propose to arrive at a sound understanding of principles of justice, including those principles we call human rights.18 Thus in arguing for a natural law approach to law, natural law theorists do not believe that justice can be achieved by virtue of applying and interpreting law in strict code. For the natural law theorist, law is not justly characterized by “individualism and collectivism”.19 Individualism discounts the “intrinsic value of human sociability and tends to view human beings atomistically”.20 Likewise, collectivism “compromises the dignity of human beings by tending to instrumentalize and subordinate their well-being” in favour of the greater good of the “larger social units”.21 Thus it can be deduced that natural law theorists propose that the ends of justice require some form of open-ended legal regime that takes account of moral values and virtues. In this regard, laws cannot be justly formed by virtue of a uniform standard best characterized as a one-size-fits all formula. This approach to law does not take account of the differences among human beings and what may be fair in one case, may not be fair in another. In order to achieve that which is just, the courts must be informed by morality which seeks natural justice. As admirable as moral and natural justice may appear to be, the reality is, laws are made by reference to a higher order. As natural law theorists freely admit, human beings are different and thus, it is difficult to imagine all human beings sharing the same moral code. Thus it stands to reason, that the positivist theories of law, what law is and what it does is more compatible with the realities of the courts. A higher authority decides that which should be laws and may or may not be informed by perceptions of moralities. Even so, the outcome of the law is that it does to a great extent formulate and influence moral codes. Thus, while morals inform the law, the law informs morals. In this regard, the separation of law from morals is intended to distinguish between that which is legally binding and that which is morally binding. Since mankind do not share the same moral values, mankind will not follow the same laws under a natural theory construction of law. Thus the purpose of law, the maintenance of social order would be in disarray. It therefore follows that the law is founded on the positivist theory and performs a clinical function. In doing so, the law sets parameters for human conduct and protection and ensures uniformity of interpretation so that laws are uniformly enforced. In all the circumstances, it is argued that lawyers and judges are obliged to interpret and apply positive law and are not concerned with discerning whether that law is just or unjust. In his letter from Birmingham Jail, Dr. Martin Luther King Jr. argued that an “a just law is a man-made code that squares with the moral law or the law of God. An unjust law is s code that is out of harmony with the moral law”.22 Dr. Martin Luther King Jr. while likely not intending to, points out the difficulties with judges and lawyers confront in applying natural law and thus taking into account, that which is just and unjust. If as Dr. Martin Luther King Jr. informs, that which is just is informed by moral law of God’s law, there is a practical difficulty with determining that which is moral and/or in accordance with the law of God. With the very many different religious beliefs and moral codes, the courts and lawyers would likely be at odds over that which is just and unjust and there would never be a consistent and coherent body of law. As it is, the law and its interpretation and application is often confusing and inconsistent enough. Using natural law theories would only complicate matters farther. It therefore only makes sense, that judges and lawyers should apply the positive law and leave the question of what is just and unjust to the law makers. Bibliography Textbooks Coyle, Sean. From Positivism to Idealism: A Study of the Moral Dimensions of Legality. (Hampshire, England: 2007). Rainbolt, Martha, and Fleetwood, Janet. On the Contrary: Essays by Men and Women, (Albany, NY: State University of New York Press, 1984). Tamanaha, B.Z. A General Jurisprudence of Law and Society. (Oxford, UK: Oxford University Press, 2001). Articles/Journals Allan, T.R.S ‘Parliamentary Sovereignty: Lord Denning’s Dexterous Revolution.’ (1983)3(1) Oxford Legal Studies, 22-33. Bix, Brian. ‘On the Dividing Line Between Natural Law Theory and Legal Positivism.’ (2000)75(5) Notre Dame Law Review, 1613-1624. George, Robert, P. ‘Natural Law.’ (2008) 31 Harvard Journal of Law and Public Policy. 171-196. Hart, H.L. A. ‘Positivism and the Separation of Law and Morals.’ (1958) 71 Harvard Law Review, 529-593. Moore, Michael, S. ‘Constitutional Interpretation and Aspirations to a Good Society: Justifying the Natural Law Theory of Constitutional Interpretation.’ (2001)69 Fordham Law Review, 2087-2117. Gold, Victor, J. ‘Limiting Judicial Discretion to Exclude Prejudicial Evidence.’ (1984) 18 University of California, Davis Law Review, 59-95. Read More