Law as a sociological phenomenon

Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity Law is seen as a body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority. The word law refers to any rule that if broken subjects a party to criminal punishment or civil liability. Laws are made in many cases by federal, state, and local legislatures, judges, the president, state governors, and administrative agencies. Law is a mosaic of statutes, treaties, case law, Administrative Agency regulations, executive orders, and local laws. law is not static, new laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particular law may be different in the future from what it is today. So in other words, law is the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision. It is any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution. As a philosophy law is interested in the general question that we just answer: What is Law? Then there is the general question about the nature of law which presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. Law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law, the reasons for a philosophical interest in elucidating them remain to be explained. Law is seen as a normative social practice: it purports to guide human behavior, giving rise to reasons for action. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on such other normative orders, like morality or social conventions. The Concept of Law as Normative regime generally gives understanding that in order for law to be effective, it must be applied and enforced as such the law must represent the people which will foster a collective social order thus leading to citizens complying with the law because it reflects their understanding.

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss Through research it was found that the adherents of the Natural Law Theory accepted as a truth that there is a direct relationship between God given morality and natural law. St. Thomas Aquinas one of the principal thinkers believed that natural law was the result of God‟s grand concept for the universe being translated into a legal moral framework, a moral code for the benefit of mankind to live and base their society around. Aquinas stated that should this divine code come into conflict with manmade laws then the Gods natural law should naturally take precedence. Natural laws according to Aquinas were designed to promote the common good with in a society to the detriment of manmade corruption and as a consequence any law which does not work to the benefit of the common good is by default a bad law, by this rational Aquinas was echoing the words of St. Augustine of Hippo “an unjust law is no law at all.” Jeremy Bentham Running contrary to the belief of Natural Law Theory is the concept of Legal Positivism, which opposes the belief that there is no connection with morality and ethics and the formation of legal theory, instead they argue that laws and the judicial system are made by man for man as a result of developing customs and convention into a quantifiable legal code.

Legal Positivism does not seek to justify or endorse any particular legal system it only seeks to make the distinction that legal institutions are manmade concepts and as such are neither good nor bad in terms of morality or ethics, in short and using modern terminology legal systems are social constructs. His ideas were picked and modified by John Austin (1790-1859), largely though their ideas were in agreement principally that laws were constructed by sophisticated societies dominated by figures such as a sovereign or parliament that have absolute power over the rest of society, these figures will often impose legislation through the threat of force or sanctions on the rest of society whilst themselves appearing not to be subject to the same rules. What actually makes this system a Legal Positive approach as opposed to a Naturalist approach is that it recognizes the model of command and compliance within the society, commands by the sovereign and compliance by the masses without the sovereign first having to secure the legitimate moral authority from the people? It does not make any difference if the sovereign makes good laws or bad laws the subject of the laws will generally comply because of the threat of sanctions in the form of punishment.

1

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss Like most theories both Natural law theory and Legal positivism can be interpreted and appropriated in many different ways for whatever advantage. For example both the Soviet Union and the Nazis had legal systems that in retrospect were unjust; however the Positivist would have recognized the dictatorial nature of both regimes and even heralded by them as they considered themselves to be legally valid and thus vindicated. The natural law theory could have been easily used by both regimes to justify their policies, as in the Soviets considering themselves to be the only party of the religion of communism and the Nazis making associations of natural selection being part of God‟s forward motion.

The Wolfenden report of 1954, which took three years to complete, and after it was published it came to the unpalatable conclusion for the government that the law should be changed to adopt a more liberal approach. The report went on to state that the criminalising of homosexual activity was impinging upon civil liberties of those involved, after all there was no law against women‟s self sex only men. When the report was published it attracted considerable debate in the media and also amongst legal ethicists including a well-known exchange of opinions between two of Britain‟s leading legal scholars Lord Devlin (Patrick Arthur Devlin, Baron Devlin, PC, (1905 - 1992) who also gave evidence for the report committee and was a prominent judge who strenuously opposed the findings of the final report and Herbert Lionel Adolphus Hart. H. L. A. Hart was greatly influenced by the theories of Bentham and his protégé John Stuart Mill, he argued that trying to impose a moral code on society was unacceptable as it was an attack on the liberties of the individual and also that even if the state tried to impose such a moral constraint on society then it would make no difference as it would have no effect on changing attitudes.

H.L.A. Hart v Devlin countered declaring that society had to have a moral standard which it had to maintain through legislation if necessary without it society would decay from within, he argued it should be based on something similar to the tort standard of the „reasonable man test‟ only in the moral debate it would be the „right minded man test‟. He went on to state that with morality it was necessary to have three fundamental principles: freedom and privacy should not be compromised as long as it does not 2compromise morality, there should be a reticence in changing laws concerning morality to suit the whims of the time, and that infractions of moral decency set by „right-minded people‟ should be punishable by law. He also declared that society has a duty to set a high moral standard so as to set an example to others.

2

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss Hart publically made a stand against this position, begging the question who can judge what a „right minded‟ opinion was anyway. He went on to state that opposition to the proposed changes were based on prejudice and ignorance rather than any sensible appreciation of the facts. He argued that to punish someone with jail, which he considered to be emotionally, damaging when no one had been actually been hurt by the alleged crime was disproportionate.

Also forcing someone to suppress their sexuality under the threat of punishment was a violation of their freewill, freewill which Hart argued was in its self-moral so to deliberately undermine free will was therefore immoral. He also emphasised that learning through experimentation of the law could have beneficial effects for society. Today one could still argue that the current foundation for British morality continues to be the right-minded man approach as championed by Lord Devlin, not much appears to have changed this argument could be supported by the case of R v Brown (1993) 2 All ER 75. The Lords rejected the defense of consent on the grounds of public policy and this decision was reaffirmed in Laskey v United Kingdom (1997) 24 EHRR 39 (ECHR).

The convictions were also upheld on appeal to the ECHR on the grounds that despite the prosecution being an interference of the personal freedoms of the individual, it was justifiable on the grounds public protection. Like the homosexual trials of the 1950‟s all the participants were consenting, no one participating had made a complaint to the police, yet despite this they were all successfully prosecuted all the way to the ECHR on the basis of protecting public morality.

Homosexual culture; once regarded as closet behaviour is now well and truly out of the closet and almost socially obligatory, one only has to look at the obsequious endorsement by institutions like the Anglican Church, Parliament, BBC to see that the statement Devlin made about society setting a higher moral standard does not bear any relevance anymore.

There are two important points about the moral obligatoriness of law that I would like to point out. The first is that obligation-imposing legal norms are sometimes morally justified, and when they are they create moral obligations as well. The „sometimes‟ here should be understood as referring to differences between different legal norms, but also to differences between different applications of one and the same legal norm. A legal rule may be morally justified as it applies to one person and not as it applies to another, or morally justified as it applies to one action and not as it applies to another. 3

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss

A legal rule that forbids driving through a red traffic light has more to be said for it, morally speaking, when the red light is at a busy intersection than when it is in the middle of nowhere. In some cases the traffic light‟s location may be so stupid as to render the law, in connection with that red light, morally unjustified, so that the legal obligation to stop that it creates does not yield a similar moral obligation. All such matters depend on the details of the case. It is hard to imagine any law that has all the moral force that it claims for itself. Even the best of laws encounters cases where it overextends to the point at which its application is morally unjustified, so that ideally it should be reined in.

The second point we have encountered is that people may add to the range of moral obligations that the law gives them by taking oaths or vows of obedience, by promising or undertaking to obey, or by otherwise committing themselves to obedience. By these methods people can bind themselves to follow even morally unjustified laws: overcomplicated laws, futile laws, over extensive laws, although probably not positively immoral laws. The people we already mentioned who typically find themselves in this position are judges. But there are others. New immigrants, police officers, heads of state, and various others often make such commitments. But most people do not make them, and they cannot be made to do so. If someone were to attempt to make them commit themselves, that would already neutralise the moral effect of the act of commitment, and so would be a self-defeating intervention.

It is seen that morality has shortcomings and sometimes needs law to help fill in the gaps. But the same is also true in reverse. Often law itself has shortcomings and needs morality‟s help to make it less so. Legal norms, like moral norms, often conflict among themselves, and often such conflicts cannot be resolved using legal norms alone. Indeterminacies of language and intention on the part of law-makers, moreover, can afflict law in such a way as to frustrate its role as a filler of moral gaps. Legal conflict and indeterminacy require extra-legal resources to overcome them (Raz 1979: 53-77). And the need to overcome them is often pressing in law. Many legal officials, notably judges, are bound by their oaths (or other duties) of office to decide any case before them that falls within their jurisdiction.

4

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss Conclusion

In conclusion, the connection between law and critical morality is necessary in that it is not contingent. It applies to every law and every legal system. The proposed interpretation of every law in every legal system can legally be challenged on the ground that it is not morally defensible but it is some force, whether the challenge succeeds or fails in a particular instance.

Courts judges should use their moral and ethical considerations in trying to make the best legal decision possible in deciding a case. Using moral reasons and norms (or indeed any other available reasons and norms) to fill in the gap is part of the process and by doing this new legal norms are made. This is the converse of the co-ordination discussed before, in which a moral gap exists which law enables us to fill (by choosing left rather than right, for example).

5

“Law as a sociological phenomenon is merely an unmitigated coercive regime bereft of moral normativity”. Discuss Reference 

Dworkin, Ronald (1967) „The Model of Rules‟, University of Chicago Law Review 35, pp.14-46



Hart, H.L.A. (1961), The Concept of Law (Oxford: Clarendon



Press)



Alexy, Robert (1989), „On Necessary Relations Between Law and Morality‟, Ratio Juris 2, pp 167-83



Finch, J, (1979) Introduction to Legal Theory, Sweet & Maxwell, London



Finnis, J, (1980) Natural Law and Natural Rights, Clarendon Press, Oxford



Hart, HLA, (1994) The Concept of Law, 2nd Edition, Oxford University Press, Oxford



Hart, HLA, (2003) “Positivism and the Separation of Law and Morals”, in Patterson, D, Philosophy of Law and Legal Theory: An Anthology, Blackwell Publishing, Oxford, pp69-90



Ivison, D (2008), Rights, Acumen, Stocksfield



Orrego, C, (2004) “H.L.A. Hart's Understanding of Classical Natural Law Theory”, 24 Oxford Journal of Legal Studies 287



Raz, Joseph (1979), The Authority of Law (Oxford: Clarendon Press) - (1986), The Morality of Freedom (Oxford: Clarendon Press) - (1994), Ethics in the Public Domain (Oxford: Clarendon Press) - (2004), „Incorporation by Law‟, Legal Theory 10, pp 1-17.



6

Gilby, Thomas (1951). St. Thomas Aquinas Philosophical Texts. Oxford Univ. Press.