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Law, Morality & Justice
§ It involves mainly Christian philosophers St Thomas Aquinas and St
Augustine argues about just and unjust laws.
§ In the Greek play of about 2000 years ago Antigone by Sophocles on
higher law prevailing over the man made law.
§ They also declined Natural law theory. Natural law theory can be said to
make moral argument about the immorality and therefore some naturalist would
argue the invalidity of some laws.
§ Naturalist = believing in natural laws of scientific explanation than
spiritually (morally)
§ On the issue of unjustness came the discussion of Civil Disobedience involving
Mahatma Gandhi and Martin Luther King.
Gandhi’s
example:
ü Gandhi was inspired by the intellectual framework laid down by Thoreau
which provides that when unjust law is faced; obey, amend and transgress it. In
Thoreau’s situation, it was involving the issue of non-violence resistance
concerning fugitive slave law 1850. He refused to pay poll tax and therefore
had to spend 1 night in the prison.
ü As for Gandhi’s situation, the unjust law in concern is dealing with
discrimination. They wanted discrimination and disenfranchised to be abolished.
Hence Gandhi mentioned that he is submitting cheerfully to the highest penalty
that can be inflicted on him for what in law is a deliberate crime and as a
duty of a citizen. Civil obedience issue here is that one should plead guilty
to violation of law.
ü Gandhi marched down the coastal town of Dandi on the Arabian Sea to protest
British monopoly on salt and this is known as the boldest civil disobedience
act by far in India.
§ Hart asserts
that though there may be no obligation to obey the law which are oppressive,
the validity of the law is not to be challenged.
§ Discussion on concept of obligation
*refer to earlier part of
midterm notes*
§ Hart proposes
minimum content of Natural law and he doesn’t deny the importance of morality
because there may be in some important areas of enacting laws where morality
may coincide and these are the basic which any social organization must contain
for it to be viable.
§ Without such minimum laws on morality, it will be hard to build the society
and the society cannot function properly
§ R.M Dais suggest
that should use positivism together with naturalist view for balance
§ Positivism provides an explanation of immediate identification but
naturalism supplies an element which can negate bad laws through political
process
§ Hart provided
on narrow and wide view regarding unjust laws
ü Wide: Recognized as law but
not reasonable to obey it (Hart
prefers this)
ü Narrow: Doesn’t accept such
unjust law as law (Fuller prefers
this)
§ Fuller divided morality
into 2:
A.
Morality of aspiration
B.
Morality of duty
A.
Morality of Aspiration
-
The morality of aspiration is morality of
excellence, of the fullest realization of human powers. In this concept one
might be condemned for shortcomings but not wrongdoing. The morality of
aspiration has to do with our efforts to make the best use of our short lives.
B.
Morality of Duty
-
While morality of aspiration starts at the
top of human achievement, the morality of duty starts at the bottom and it lays
down basic rules without and if there are no such rules, cannot achieve ordered
society.
-
Morality of duty is very close to law, it
does not condemn them for not making best use of short life, instead condemns
them for failing to respect basic requirement of social things
§ In terms of religious based morality, have to look into the 5 precepts of Buddhism:
ü abstain from killing
ü abstain from stealing
ü abstain from sexual misconduct
ü abstain from lying
ü abstain from intoxications
§ For Buddhist monks may have more restrictions such as avoid sleeping on
high and luxurious beds, and abstain from touching silver and gold.
§ Look into the Christian 10
commandment to see and determine whether you think it is form of
morality duty?
ü I am the Lord your God... thou shalt have no other gods before Me.
ü Thou shalt not make for thee any graven image or any likeness of anything
that is in heaven above, or that is in the earth beneath, or that is in the
water under the earth; thou shalt not bow down to them, nor serve them.
ü Thou shalt not take the name of the Lord thy God in vain.
ü Remember the sabbath day, to keep it holy. Six days thou shalt labor and do
all thy work, but the seventh day is the sabbath of the Lord thy God.
ü Honor thy father and thy mother, that it may be well with thee, and that
thy days may be long upon the earth.
ü Thou shalt not kill.
ü
You shall not commit adultery.
ü
You shall not steal.
ü
You shall not bear false witness against
your neighbour.
ü
You shall not covet your neighbour’s house;
you shall not covet your neighbour’s wife, or his male servant, or his female
servant, or his ox, or his donkey, or anything that is your neighbour’s.
§ Fuller explained on the eight negative criteria to become an effective
legal system. Failure of ONE is sufficient:
1.
Failure to established rules at all
2.
Failure to make public to those required
to observe them
3.
Improper use of retroactive law making
4.
Failure to make rules comprehensible
5.
Making rules which contradicts each other
6.
Making rules which imposes requirements
with which compliance is impossible
7.
Changing rules so frequently which had
made it all unclear
8.
Discontinuity between the stated content
of rules and their administration in practice
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