Jurisprudence Issues Analysis - Essay Example

?Introduction How to create man-made law has been an age-old conundrum. Some may say that morality and God should be the basis for man-made laws. However, this inevitably begs the question of whose morality and whose God should be consulted for these laws.  Others state that morality and laws should be separated, and that reason and science should be the underpinning of laws.  This would seem to be a better way of creating laws, except that it also seems rather vague.  The real question of this essay is whether an individual is within his or her rights to break a man-made law. The analysis would be derived by examining natural law, which is law based upon morality, and positivist law, which is law divorced from reality. The quote upon which this essay is based is derived from the story of Antigone. The story of Antigone, as written by Sophocles, is that Antigone's brother, Polynices, having been declared the enemy of the state, was not entitled to a proper burial. Antigone decided to defy the proclamation that her brother not be buried properly, and gave him a burial against the state's wishes. After this she was imprisoned and hanged herself in her prison (Sophocles). Natural Law According to Stoner (1992),1 the story of Antigone is one in which the individual is entitled to break the law. He cites Thomas Hobbes as distinguishing between right and law (ius and lex) – right being the basis for liberty and law being the basis for obligation. According to Plucknett (1940),2 Hobbes believed that knowledge was obtained through the senses, and that “felicity means success in getting what one wants.”3 This is part of the theory of natural law, which is described by Sir William Blackstone as the laws which are endowed upon us by our creator, and are, basically, laws regarding good and evil.  The law of nature is binding upon men throughout the world, and, if a human law is in contravention to the natural law, these laws would not be valid, because man-made laws should be bound in these natural law principles .4 Robinson (2001) argues that natural law is inextricably wound in the jurisprudence tapestry - much like an alphabet is the basis for words, natural law is the basis for all laws.5  Moreover, as St. Thomas Aquinas notes, a law may be seen as unjust if it does not accord with God’s laws.  6 Hobbes, according to Stoner (1992) also states that there are limits to the law, or, rather, that there are limits as to what an individual is expected to obey. Hobbes believes, essentially, that man has liberty to decide for himself what is right for himself as an individual – “the Liberty each man hath, to use his own power, as he will himselfe, for the perservation of his own Nature; that is to say own Life; and consequently, or doing anything, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.”7 Finnis (2001) would concur in this analysis, stating that governmental laws are limited, in that they must recognize certain universal, God-given rights – such as the right not be murdered, raped, enslaved or lie-to. 8 Further, Stoner (1992) states that Hobbes’ philosophical underpinnings of the law is moral, as opposed to civil or political, as it is directed at the individual, and what is right for every individual, as opposed to the collective. The preservation of the individual is at the heart of the Hobbes’ philosophy. Hobbes’ philosophy, according to Stoner, does not even take the mores and customs of a community into account, because custom is not necessarily anchored to morality or liberty.9  In one thinks about this, it makes sense  - just as slavery was a custom, it clearly was in contravention to natural law or liberty, therefore, the custom of slavery is one that is built upon uncertain ground, like sand.  That said, according to Cornish & Clark (1989), Hobbes recognized that man’s nature was prone to violent destruction, so society must keep a check on the individualistic natures.10  Because natural law is inevitably based upon some system of morality, Macedo (2001) states that this system of law may provide the basis for the state’s regulation of associates, such as the family, religious communities and friendship.11 Zuckert (2001) would state that natural law is incompatible with the concepts of limited government, as natural law might mandate political action upon private activity, which would be the antithesis of limited government.12 An example of this would be proscriptions against homosexual activity – assuming that one believes that homosexual activity is against some kind of God’s law, then the state might be perfectly within its purview to ban this activity, and, in fact, one might even argue that such a ban would be mandated by natural law principles.  However, such a ban would also be in contravention to the principles of limited government – that the state does not have a right to be in the individuals’ bedrooms. Barnett (2001), who explains that natural law has experienced a resurgence, of sorts, in modern jurisprudence, states that constitutional adjudication can and should take natural law principles in to account. To wit, Barnett (2001) states that laws should be evaluated to make sure that they are just, and that citizens have a prima facie moral duty to obey them; that the laws are both just and binding; that these laws not infringe upon the natural rights of citizens; and that natural rights should figure into judicial review of legislation.    Only if the law is considered just does Barnett (2001) state that the law is legitimate.13 Perhaps related to this idea is that idea that laws should have some type of internal morality – that morality is implicit in any laws. 14 That said, there is confusion about how to apply natural law, and this confusion is exacerbated by the fact that Aquinas never really explained how to apply God’s providence to human responsibility, other than to say that this marriage relies upon faith more than reason.15  Weinrub (2001) correctly notes that the problem with the application of natural law to jurisprudence is that the term “moral certainty” is essentially meaningless, because each individual has their own version of “certainty,” and each individuals’ version of certainty is readily challenged by others, who have differing and opposing views of “certainty.”16 Moore (2001) explicitly refutes the natural law theorists’ reliance upon a creator or God as being the basis for our rights, stating that God not only should not be the basis for our laws, but also should not be the basis for our morality. 17 Garcia (2001), in answer to Moore, states that, while perhaps God should not be the basis for laws or morality, the Bible is relevant in this regard. 18 Positivist Law The positivist view of the law is critical of the view of natural law, which is exemplified in the writings of Jeremy Bentham, H.L. Hart, and John Austin. According to Cotterrell (1989), the above philosophers state that laws must be objective, and subject to some kind of scientific analysis. These philosophers feel that the laws which are created must be analysed by a set of objective criteria, and that ethical speculation is a poor underpinning for laws. This is because ethical views may vary from one person to the next, therefore anybody would be able to second-guess any law, based upon one’s personal view of ethics and morality.  Further, according to Cotterrell (1989), Bentham states that natural law precepts have another problem, and that is that laws are assumed to be right and just, if one believes that man-made laws are based upon natural laws. This is because the thinking may go that, if man-made laws are based upon ethics and the principles of right and wrong, then there would just be an assumption made that any man-made law would be based upon these same principles. 19 Because of this, the legal positivists believe that law and morality should be separated from one another. 20 Berns (2001), in arguing against natural law, states that morality changes over time, therefore natural law cannot exist – just as what our creator bestowed upon us when we were created should not change with time, neither should the moral underpinnings of our laws change. However, morality does change with the times – again, use the example of slavery, which was considered moral for many years, now certainly is not considered moral – therefore, natural law cannot possibly have a sound underpinning of morality.21 That said, Leiter (2007) might see things slightly differently. A positivist, Leiter nonetheless states that laws are somewhat based upon morality, for he cites a “rule of recognition,” which is a societal construct which has bearing on a law’s legitimacy.  In other words, a society must recognize the moral underpinning of a law, and societal norms and how a society’s behavior converges are at the basis for the enaction of laws.  While Bentham is perhaps one of the most famous of the positivist scholars, Austin was also a positivist, who is less well-known than Bentham, but perhaps is just as erudite. 22 According to Cosgrove (1996), Austin saw law as being set by individuals who are politically superior, and followed by those who might be considered to be politically inferior. 23 Like Bentham, Austin thought that law should be subjected to some sort of scientific inquiry.  However, Austin also believed that God or the creator does play a role in law. Like Bentham, Austin believed in the concept of utility, or the common good, and how every individual must look at one another’s actions by how their actions might affect the common good.  According to Cosgrove (1996), Austin tied the concept of utility in with God and the creator by stating that God provides commandments to his subjects, but, with regards to the commandments that God has not revealed, man must fill in the gaps with the concept of utility, or the common good.24  Analysis In analysing the issue of Antigone, there are two schools of thought which might underpin whether Antigone herself was just in violating the law. The natural law would state that Antigone’s individual rights are given to her by God, and any kind of man’s laws which contravene these natural laws would be presumptively invalid.  The positivist would state that natural laws should not be a proper basis for laws, because laws should be based upon some type of scientific inquiry or order, and some kind of objective criteria.  Morality and God’s law cannot form the basis for laws, because morality is constantly changing, and God’s law is not necessarily something upon which everyone can agree, either.  Under either analysis, Antigone was probably within her rights to violate the man-made law which prohibited her from burying her own brother.  Under the natural law theory, Antigone is endowed with certain rights from her creator, and, among these rights, is the right to liberty and to decide what is good for oneself as an individual.  Moreover, the law itself in this case is not based upon any kind of morality or God-given rights – it is certainly not moral or just to prohibit a young girl from burying her own brother.  Under the other analysis, which is the positivist view of the law, Antigone would be within her rights to bury her own brother, because the law itself does not have any kind of a rational basis. Rather, the basis for the law seemed to be the caprice of the person who made the law, as he was upset with Antigone’s brother because of his supposed treason against the state. Therefore, the law itself seemed to be created out of spite, not any kind of rational, sound legal principle. In the final analysis, regardless of whether Antigone would be within her rights to bury her own brother, there should be some sort of reckoning for these two bodies of law, in determining if it would be okay, under either theory, to break the law as Antigone did.  Under the natural law theory, there would be a basis for breaking the law, as some philosophers believe that any kind of man-made law which contravenes God’s law or a creator’s law, is illegitimate on its face.  Morality also plays a part in this, as a law must be moral and just in order for it to be legitimate.  There is a major problem with this analysis, however, and that is that there are inevitably going to be different standards used, as individuals practice different religions and one man’s God will be different from another man’s God, and there are always going to be differing interpretations of scripture.  There is simply not a way for society to accommodate all religious beliefs, and exempt them from laws based upon these beliefs.  For instance, if the Bible condones slavery, as many state that the Bible does exactly this, what is to stop a man from owning a slave, then stating that he or she is exempt from the man-made law, because his or her creator gave permission to own a slave?  This would certainly be a legitimate argument, if one assumes that the Bible is God’s word, and that God is the only legitimate bestower of rights. Even more problematic is the issue of morality as a basis for laws, and as a basis for whether one has to follow man-made laws.  There will always be a conflict of morality in any given situation.  One man may state that his morality dictates that homosexuals cannot be married, because it is immoral – homosexuality is bad for society, bad for children, and against The Bible, in this man’s view. Another man will state that not allowing homosexuals to marry is immoral, because this act is depriving an entire class of people the right to pursue happiness and societal approbation, therefore their liberties are limited. This is a legitimate argument for homosexual marriage. Both arguments are based upon individual morality. This is but one example, and the examples are truly endless – the green activist would state that it is immoral to exempt companies from stringent regulations, because the planet is being destroyed. The corporatist would state that regulations are immoral because they might result in a loss of jobs, which increases the employment and the overall societal misery.  The Catholic priest would state that birth control is immoral and in contradiction to God’s teaching. Somebody else might legitimately claim that overpopulation is such a problem that not practicing birth control is immoral. Etc. Because of the subjectivity of natural law, there really is not a good reason to break the law based upon natural principles, because, to allow individuals to break the law because of their individual morality or interpretation of God’s law would be to invite chaos, and the force of law would not have any force at all, because everybody could come up with a good moral excuse why they broke this law or that.  That said, there is not necessarily a good basis for the positivist laws, either, if one accepts that morality and law must be completely separated.  There seems to be an inherent problem with the thought that laws can somehow be scientifically analysed, in that it would seem that this is not entirely possible, either.  There is some thought that rationality should underpin our laws, and this would be in accordance with the positivist view.  That said, one cannot really divorce morality from law altogether, even if one accepts that morality is changing with society and is individualistic.  There simply has to be a sound basis for a law – if one divorces morality completely from law, then evil laws might result, as happened during Nazi Germany.  And, really, positivist laws are really not conducive to breaking.  Like them or not, laws are laws, and an individual cannot really just decide which laws he or she is going to follow or not. Again, this would result in chaos.  Perhaps the exception is for truly evil laws, such as those passed during Nazi Germany. Conclusion In the end, Antigone was not within her rights to break the law and bury her brother – while she certainly has a moral imperative which would allow her this, the laws are laws, and that there must be an obedience to the law in order to achieve a working society.  In Antigone’s case, the law was silly and capricious, but that really is not necessarily for the citizen to decide.  In order for society to work in an orderly fashion, there cannot be a picking and choosing of what an individual will follow or not follow, according to the individual whims or beliefs.  This would be chaotic. Rather, the better method is to ensure that laws are just and not capricious, and this is done through the political process. Anything else would be anarchy.   Bibliography Barnett, R. 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(2001) Natural Law, Liberalism and Morality.  Oxford: Oxford University Press, pp. 49-87.           Read More