Jurisprudential Analysis of Charles Dickens The Great Expectation - Essay Example

Jurisprudential Analysis of Charles Dickens’ The Great Expectation. law. Dec One question that jurisprudence tries to answer is the abstract question what is the law? How do judges properly decide cases? Two distinct schools of jurisprudence have emerged over time; the legal positivists and natural law theorist. These two schools differ in material terms concerning the sources of law, purposes of law, why the laws are obeyed or legitimacy of law. This paper seeks to answer these abstract questions, through a jurisprudential analysis of Charles Dickens’ book, The Great expectations. This book revolves around a character by the name Pip, who was a young poor man who had been orphaned. Natural law theorists contend that law cannot be understood outside the precepts of morality. 1There exists a higher moral norm which is superior to manmade laws. Any law that is contrary to this moral norm is invalid. It is universal, ascertainable by reason and use of personal intellect. 2 Legal positivists, on the other hand, oppose any relationship between law and morality, and state that the two have nothing in common. Dickens points law as that what the government and parliaments enacts as law. He seems to support positivists who argue that law is the command of the sovereign buttressed by sanctions. Law is that which is posited either as an order, decision, practice or that which is tolerated. The laws that are in force in any given system depends on what its officials recognize as authoritative, for example, judicial decisions or legislative enactments.3 According to the book, law is also the decision of the judges. It is the judges who decide what law is, for example. This supports legal realists who argue law depends on the judges. Justice Oliver Holmes equated law to the “bad man theory” arguing that law is that what a bad man appearing before a judge fears that the judge will do to him.4 According to realists therefore, law is what Magwitch feared the lord Justice would do. Another realist justice Richard Posner, “law is the activity of the licensed persons, the judges.” What are the role/functions of law? According to the source, law removes and keeps bad elements away from the society. It is the law that kept convicts in prison, and prevented him from running away. When Magwitch ran away, warrant of arrest was issued, and law was going to have him hanged if he was ever arrested. 5 Dickens seems to support John Finnis arguments. According to John Finnis, the purpose of law is to advance basic forms of human flourishing, that is, life, knowledge, religion, practical reasonableness and friendship. 6He argues that law serves to advance common good. Common good, according to him, cannot be achieved without community with other human beings. Moreover, Dickens portrays a society regulated by law. According to Lon Fuller (1965, 657), law’s essential function is to achieve order through regulating people’s behavior and subjecting their conduct to the guidance of general rules by which they may orient their behavior by themselves. 7 Accordingly, law prevented people from harming each other, and when Magwitch killed Compeyson, he is sent to jail and is set to be executed. Therefore, according to fuller, nothing can function as law unless it is capable of guiding people’s behavior. Sources of law. From the book, law originates from the government. In chapter XXVI, Pip alludes to books he saw concerning evidence, criminal law, criminal biography, trials, Acts of Parliament. 8 According to the legal positivisms, laws originate from the sovereign. Classical positivists like John Austin and Jeremy Bentham argue that law, is that what is posited by the sovereign either as a judicial decision, legislation or social custom. Therefore, law originates from a sovereign, who everyone obeys and who does not obey anyone. Modern positivists like HLA Hart, argue that the presence of a legal system is predicated on the subsistence of certain structures of governance, and that what laws are in force are determined by the social standards that its officials recognize as authoritative. 9 Like the positivists, Dickens credits presence of law to the existence of governance structures like government, judiciary and police. Dickens, therefore, seems to oppose the natural law theorists on the source of law. Some argue that law originates from God, others from the human nature itself, and others from natural condition of the existence of human kind. Nevertheless, they all subscribe to the idea that there exists a higher law which does not require any human legislator, but which overrides all human law. Classical natural law theorists argue that this law is discoverable by reason, and the use of human intellect. 10According to Aristotle, this law is universal, and immutable, and binds everyone regardless of whether they have submitted to it or not. The medieval philosophers like St Thomas Aquinas argued that the ultimate source of all law is God. He argues that there exist four types of law, namely God’s law, Divine law, Natural law and Human Law. He argues that God has not revealed all the laws in the scriptures, and that not all natural law has been proclaimed. He further argues that human law is that part of natural law that has not been proclaimed. His ideas are however opposed by modern natural law theorist. For instance, Hugo Grotius argues that law exists independent of God’s will. Other modern natural law theorists like John Locke attribute the source of law to the social contract. The laws of nature grants everyone personal liberty. However, for the sake of common good, peace and order, they cede some of this liberty to a government which is then supposed to protect them Why should laws be obeyed? What determines legitimacy of law? People obey the law for fear of sanctions. 11For instance in the book, the penalty for murder is execution. Pip had to pay his debts to avoid the sanction of being sent to prison. 12According to Positivists, all the commands of the sovereign should be obeyed. Austin argued that people obey law to avoid sanctions. Law is the command of the sovereign backed by sanction, and therefore people obey law to avoid the sanctions. As such, people are coerced to obey the law, and they obey to avoid punishments. In Chapter Xii, Pip is very afraid of punishment for beating up another person. He says that it became clear to him that “village boys could not go stalking about the country, ravaging the houses of gentle folks and pitching into the studious youth of England, without laying themselves open to severe punishment.”13 As a command of the sovereign, law has been equated to commands of a bad man. Dickens opposes this argument by equating the command of a sovereign to that of a criminal. In the book, Pip obeys the commands of the convicts because he had been coerced through death threats. In absence of these threats, he would not obey the commands.14 The commands of the criminal, even if backed by sanctions and have been obeyed, are nevertheless not law. Therefore, he supports the natural law theorist that law derives validity from conscience. According to St. Thomas Aquinas, human law derives legitimacy if it conforms to Gods law. It must be consistent with reasoning, for it to be legitimate. Therefore, according to him, laws are obeyed because they are divine. According to him, unjust laws do not bind the conscience and are no law at all. Consequently, they should not be obeyed except in special circumstances as where they are for the avoidance of a scandal or to avoid some particular danger. According to Lon Fuller, a modern natural law theorist, law should legitimacy of law rests on procedural issues. He enumerates eight rules, failure of which the law lacks legitimacy. According to him, law must be publicized, prospective, understandable, and not contradictory, require conduct beyond human powers, change frequently or lack congruence between stated rules and actual administration of rules. 15All natural law theorists agree, and positivist reject, that the moral ideals like social justice and democracy determines the validity of law. Relationship between Law and justice. Dickens argues that justice is associated with morality, a concept supported by natural law theorists. Natural law theorists argue, and positivist reject that there is a relationship between law and morality. Positivists advance the separability thesis according to which, they argue that law and morality are two separate things that do not overlap. Morality and law have no any relationship whatsoever. Law derives validity from its source and not from its merits, and consequently a rule can be valid even though it is grossly unjust. However, HLA hart admits that even though justice is not a precondition of the law’s validity, law often achieves justice. Positivists hold that legal rights and duties are not necessarily a variety of moral rights and duties. Natural law theorists on the other hand argue that law and morality overlap. Morality is included in the law, and that is why law that fails to meet the morality threshold is no law at all. According to Lon Fuller, there is an overlap between legality and justice, because it is not possible to have a legal system that lack fidelity to the rule of law and formal justice. Most naturalists, with the exception of Fuller, admit that morality is a substantive content in the law. Fuller argues for internal morality whereby the law must conform to a certain moral criteria for it to be effective. Ronald Dworkin argues that while judges interpret laws, they should be guided by the principles of justice that any legal system upholds. Law should be just, but it is not always so. It may meet the criteria of legal justice that is legal according to the law, but fails to meet the morality threshold. How law structures relationship between individuals and between individuals and government. Law dictates what individuals must do, and requires its subjects to act without self interest but in the interest of other individuals or public interest. To add, law provides mechanisms within which individuals can structure their relations to create rights and duties that fall under the coercive character of law. It regulated the existence as a family between Pip’s sister and his husband Joe. It is law that validates marriage. Such rules include rules enabling individuals to make contracts, wills, and trusts and generally define rights and relationship between individuals. This relationship is horizontal in nature. Law enabled the mysterious benefactor to leave great wealth to Pip, through his lawyer. Dickens points that law also provides for vertical relationship between individuals and the government, the relationship between the commander and the commanded. It dictates what the government expects from the citizens and what the citizens should in turn expect from the government. According to John Locke, there exists a social contract between the people and the sovereign, whereby the people cede some of their liberty for common good and that failure by the sovereign to keep part of their social contract entitles the people to overthrow the sovereign. The law marking power of the government originates from the people. Law also regulates instances when the government can use coercion over its people. It is law that permits the government to arrest and punish errant individuals. According to John Locke, government is necessary so as to preserve natural law and avoid a state of nature where every individual is in a state of war with other individuals. References. Alexxy, R.2004. The Nature of Legal Philosophy. Ratio Juris. 17(2) Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon Press. Fuller, Lon .1958. “Positivism and Fidelity to Law: a Reply to Professor Hart,” 71 Harvard Law Review 630. Hacker, P.M.S. 1973. “Sanction Theories of Duty,” in A.W.B. Simpson, ed. Oxford Essays in Jurisprudence: 2nd Ser. Oxford: Clarendon Press Hart, H. L. A. 1982. Essays on Bentham: Studies in Jurisprudence and Political Theory. Oxford: Clarendon Press Leiter, Brian .1997. “Rethinking Legal Realism: Toward a Naturalized Jurisprudence,” 76 Texas Law Review 267 Mullender, R.2009. “Law Morality and the Egalitarian Philosophy of Government.” Oxford Journal of Legal Studies, 29(2). Read More