The Pursuit for a More Universal Definition of Justice - Essay Example

Answering Three Questions Part I Q1 The Meaning of Natural Law Legal Theory and Legal Positivism Natural law legal theory is a school of thought postulating that the validity of law or norms depends on their moral substance (Feinberg 3). Natural law is higher than man-made-law. The validity of man-made-law depends on its agreement with a higher form of law, the natural law. Natural law is supreme in reference to man-made-law (Wallin 60). As St Thomas Aquinas asserted, law deficient of moral content is “pervasive”. Natural law is founded on the tenet that despite the fact that nature contains man, he also has his own nature, which is to procreate, offer family protection and safeguard his life. Natural law is the pivot upon which man attain all these goals. It disputes validity requirement of law on the basis of social facts. Legal positivism is a set of legal theories postulating that law refers to rules enacted within the jurisdiction of a state provided it is legitimately imposed on subjects and it is outside the sphere of moral content. Legal positivism treats law as a mechanism of well-defined rules, which acknowledges some norms as laws. The Relationship between Morality and Law Natural law theory supposes that an interconnection exists between law and morality. According to natural law theory, the moral content of law asserts its validity. Law is not law if it is unjust. Therefore, law is not necessarily what is enacted in the statutes and that legislation is not law if it is deficient of morality, thus lacks authority. On the other hand, Legal positivism emphasizes the on delinking law from morality. According to legal positivism, there is a line between law and morality. Legal positivism is built on two theses: separation and social theses. The social thesis emphasizes law as a social phenomenon whose soundness is determined by social facts, which are crucial sources of law. On the contrary, separation thesis holds that a separation exists between law and morality. Problem with Natural Law Legal Theory Natural law theory is not without problems. First, it makes too ambitious claims on morality’s behalf. Finnis does not supply a convincing argument to back up his claims on the values and principles. He also does not explicitly demonstrate that these values and principles have the potential to provide reasonable law criticism (Taekema 213). Natural law also appears to as anarchism plea as well as conservatism plea. These accusations point at the indeterminacy of the principles of natural law legal theory. The other problem with natural law legal theory is the manner in which its objective ethics deal with conflict. According to Taekema, “Jeremy Waldron argues that the objective truth of moral values leads nowhere, unless people can be brought to agree on those values” (Taekema 213). Conceptual Problem That Occurs In Legal Positivism in Scenarios Where Morality and Law Conflict The conceptual problem that exists in legal positivism is the separation of morality and law. This becomes a problem, particularly where morality and law conflict because both are reason for action. Many law authors have no hesitation on pinning “law principles on true morality” (Himma and Peczenik 74). It is impossible to assert an authoritative legal reason in legal cases without “surrendering the concept of separation of law and morality” (Himma and Peczenik 74). Ways through Which Natural Law Theory and Legal Positivism Might Start To Merge One way of merging natural law theory and legal positivism is by modifying H.L.A. Hart’s thinking. For first, as Dworkin argues, judges are not only supposed to focus on identifying legal rules, but they should also seek principles upon which the rules are founded. It would emerge that the law has some elements of morality despite the fact that it law and morality are separate as postulated by legal positivism. Also, in order to merge natural law theory and legal positivism, it is essential to distinguish between legal validity theories and legal interpretation theories that make up legal philosophy. Part II Q1. In his definition, Thrasymachus implies that the influential persons in the society uses their authority to their own benefits rather than serve others. According to him, leaders use their strengths for their own personal gains rather than serve their subjects. In this plight, leaders make laws that only serve to enable them achieve personal gains. The laws operate to their own advantage rather than focus on the benefit of the rest (followers). Thrasymachus’ claim that no leader appears to be fallible during his reign is quite to the point. However, Thrasymachus’ claim does not provide the solution as to whether it is just for a leader to exercise his authority for personal gains. In his example of thieves, Socrates argues that injustice aims at developing conflict between people who act communally. He explains that one who is unjust at soul will always function against collective success potential. According to Socrates, justice is what drives collective achievement. He utilizes an example of a bunch of thieves who group to function together to portray how justice serves to ensure the success of collective achievement. As Socrates explains, it is justice which directs the thieves to keep their hands off one another as they ply their trade. In this case, justice triumphs over injustice, thus injustice cannot absolutely attain maximum advantage. Though doing unjust thing, the thieves show some justice for one another as they strive for collective achievement, which brings in an aspect of self-contradiction in injustice. Knowledge, as described by Plato, is lasting truth. As such only the intelligible realm as well as the Forms constitutes knowledge. On the other hand, opinion refers to the highest level of certainty that people can ever think of in terms of visible realm. The knowledge of justice raises the question of knowledge versus opinion for it seeks to demonstrate that justice is built on truth (knowledge) rather than opinions. Thrasymachus’ argument is that injustice is more gainful and advantageous compared with justice. Thrasymachus’ argument appears to be more inclined to wisdom. According to him, those who have power in the society use their influence and authority for their individual benefits rather than serve in the best interest of their subjects. Therefore, leaders will always use the law to their advantage to achieve their self-interest at the expense of their subject. Justice is aimed at ensuring that all people are treated equally as required by law. The definition that justice confers more strength to one person than another implies injustice in itself for how can justice serve to oppress others as it gives absolute power to others? Therefore, the definition that justice makes other stronger than some requires elaborate explanation to iron out sense of ambiguity it exhibits in perpetuating injustice. The definition in itself claiming justice is unjust, which rather creates a complex scenario. On the other hand, one who defines justice in terms of advantageous leaves little room for criticism. Justice could be argued to be advantageous in the sense that it restores parity among individuals in the society. Justice is served when it works to the advantage of all rather than selected few in the society (Himma and Peczenik 74). Justice is advantageous in that it eliminates all evils or injustices that are inherent to human nature. Q2. By saying, “justice means making sure you give everyone what is legally due to them,” Cephalus’ view is that justice constitutes telling the truth and paying debts that you owe to another person. Cephalus point is that justice is served when one pays back whatever he borrowed from another person because what is borrowed is legally that person’s. Putting Cephalus’ definition into question, Socrates expresses his dissatisfaction by giving an example of artillery and an insane owner. He asks Cephalus if it would be just to give back weapons borrowed from a friend who surfaces to repose his weapons when the borrower knows clearly well that he has gone insane. In this case, Socrates portrays his dialectical approach where an attempt by Cephalus to define justice in terms of truth and paying debts is met with devastating counter-illustration. Socrates thus exposes the definition as insufficient prompting the pursuit for a more universal definition of justice. The argument in search of sufficient definition of justice continues when Polemarchus, Cephalus’s son, succeeds his father in the argument. According to Polemarchus in reference to Socrates’ example of insane man repossessing his weapon, he concurs with Socrates that it would be improper to give back the weapons to the insane friend. His assertion is that justice is giving people what fits them, thus justice is giving goods to friends and harming adversaries. However, Socrates finds some problems in this definition of justice by Polemarchus. First, Socrates identifies that in case one mistakes between a true friend and a fake one, then he is likely to give the goods to the fake friend consequently giving the goods to the enemy. Second, no one can willingly harm another because it reflects injustice rather than extend justice. It actually creates a picture that a just person is useful when justice is useless and vice verse as Socrates finally makes Polemarchus to conclude. Epistemology refers to the investigation into the nature of knowledge. It concerns how human gain knowledge and distinguishes truth from falsehood (Schwartz 166). The argument that ensues in search of a fitting definition of justice is a perfect example of knowledge search. In the argument, Socrates manages to convince Cephalus and Polemarchus, shifting their belief in what they originally perceived as true or false. The question illustrates belief and knowledge search, which basically constitutes epistemology. Justice should be applied equal to all. In the argument giving goods to friends and harming enemies, it clearly infringes equity in justice system. Justice appears to be skewed because it deprives enemies of justice and confers it to friends. By leaning on one side, this argument thus violates the principle that justices should be used to serve more justice. Cephalus’ definition appears to be purely in agreement with legal positivism. He points out that law is authoritative on the subjects upon which it is imposed as long as it serves for the good of the individuals. On the other hand, the modification of Cephalus’ definition by his son Polemarchus brings in the relationship between law and morality, where actions are guided by certain principles of nature, which are basically treated as societal norms. In connection with legal positivism, this argument portrays the separation of morality and law. For example, during war, it might appear unjust to kill opponents. However, when one acts in self-defense, which is permitted by law, he stops the opponent from carrying out unjust act. Works Cited Feinberg, Joel. Problems at the roots of law: essays in legal and political theory. New York: Oxford University Press, 2003.Print. Himma, Kenneth Einar and Aleksander Peczenik. Law, morality, and legal positivism: Lund, Sweden, 12 - 18 August 2003.Stuttgart: Steiner, 2004. Schwartz, David G. Encyclopedia of knowledge management. Hershey, PA: Idea Group Reference, 2006.Print. Taekema, Sanne. The concept of ideals in legal theory. New York: Kluwer Law International, cop. 2003.Print. Wallin, Alex E. John Finniss Naturl Law Theory and a Critique of the incommensurable Nature of Basic Goods. Campbell Law Review, 35.1(2012): 59-81. Read More