Question one.
The word ‘law’ is often used when referring to any criteria of right judgement in matters of practice or any standards for assessing options for human conduct as good or bad. This is also how the word ‘law’ is also used in the term ‘natural law.’ The word ‘natural’ is used to signify that some criteria or standards are somehow normative prior to any human choices. The standards stated are not a product of individual or collective choosing or positing, which are not able to be repealed, resulting in being violated, defied, or ignored. They take these standards and then determine what is reasonable. Cultures or people who fail to acknowledge the standards are then labeled unreasonable. Natural law theory claims to be the adequate or sound jurisprudence, and the sound ethics and political theory. Plato and John Locke both found it appropriate to recapture the essence of natural law. Plato addressed that attempting to live in line with the law of nature by ruthless pursuit of one’s desires for power or other satisfaction is self-stultifying, incoherent, and unreasonable. It is known that by nature one’s desires, no matter whether intelligent or primarily emotional are in some need of being governed by the standards of reason. The standards that are used to judge the lustful tyrant a bad human being, or a failure, is natural law. The tradition of natural law theory has a leading purpose to answer the parallel questions of a conscientious individual, a group or a group’s responsible officer. Societies and their laws and institutions are understood as they would be understood by a participant in deliberations about whether or not to make the choices which shape and largely constitute that society’s reality and determine its worth or worthlessness. The reason why classical natural law theory does not reduce ought to is that in its debates with prescientific superstition and with sophistic reductions of right to might, it got clear about the irreducibility to each other of four kinds of order, to which correspond four kinds of theory. All in all, morality and natural law, cannot be reduced to, or deduced from, the principles of natural science or metaphysics, logic, or any craft. “None the less, the tradition has a clear understanding that one cannot reasonably affirm the equality of human beings, or the universality and binding force of human rights, unless one acknowledges that there is something about persons which distinguishes them radically form sub-rational creatures, and which prior to any acknowledgment of ‘status’, is intrinsic to the factual reality of every human being, adult or immature, healthy or disabled.” (Coleman, Shapiro 2004) Finnis also has law playing a major role within his moral theory. Today, people who call their work ‘natural law theory’ often refer to themselves as re-presenting and developing the classical tradition. This view started emerging from Samuel Pufendorf in 1660 or John Locke around the same time. Locke and Pufendorf take the well-sounding but quite opaque idea that morality and the law’s basic principles are a matter of ‘conformity to rational nature.’ Hobbes addresses how this nature is known and why it is normative for anyone, and proclaims his contempt for the classical search for ultimate ends or intrinsic reasons for action. Obligation and law are defined, by Hobbes and then by Locke and Pufendorf, as matters of superior will. Locke and Hobbes are both aware that ‘ought’ cannot be inferred from ‘is’ without some further ‘ought’. Kant holds alone the rejection of any reduction of ‘ought’ to the ‘is’ of will. Exclusive legal positivism, also known as soft positivism, notion that there are no standards of action save those created are put in place by conventions, commands, or other such social facts, were well known to Plato and Aristotle. Dworkin, a contemporary anti-positivist, touches on the moral consideration of the law and what the law should be. Legal positivism holds that state law is, or should systematically be studied as if it were, a set of standards originated exclusively by conventions, commands, or other such social facts. Developed by Bentham, Austin, and Kelsen, legal positivism was officially neutral on the question whether, outside the law, there are moral standards whose directedness is not to be explained. Hart’s book makes it obvious that there are many concepts of law and even of the law of sophisticated nations. Hard positivism known as inclusive legal positivism, argue if a state’s law explicitly or implicitly authorizes or requires the judges, in certain kinds of case, to ask themselves what morality requires in circumstances of this kind, then the moral standards answering the question has legal as well as moral authority.
Question two.
Ronald Dworkin is known as an influential figure within the English language of legal philosophy. His work involved criticisms of H. L. A. Hart’s version of legal positivism, from which he developed his own theory of law, which then changed into an interpretive theory of law. “According to Dworkin’s approach, to determine what the law requires—what the law ‘is’—one finds the best interpretation available of the relevant legal data: legislative acts, judicial decisions, or constitutional texts. Dworkin’s moral theory made an account of adjudication, which exaggerates the specificity of morality’s own standards and the linguistic and purposive determinacy of most important rules. Dworkin observed that as a judge one will usually considers that one of the answers presents itself as compelling. He resulted to this from the fact that each judge adds to the fully posited set of laws a set of presumptions about matters which are or involve guesses about the future. Dworkin has also avoided referring to ‘natural law’ entirely, and especially with describing his work. However, Dworkin is known as a natural law theorist in the sense that his approach to law and to legal theory rejects a strict separation between morality and law. Dworkins approach states that one cannot determine ‘what law is’ without considering moral or evaluative matters. H. L. A. Hart’s general approach to law, that one should look at ‘law’ in its fullest form, rather than in some lowest common denominator of all systems we might consider legal. Hart was able to locate the boundary between legal positivism and natural law theory at the conceptual separation of law and morality. Hart gently placed jurisprudence on the road back to the point where it is able to rejoin the classical tradition. His ultimate message, that there must be understanding of law and all its constitutive elements and concepts, within the internal point of view. Hart also offers an explanation of the reasons people have to introduce these authorizing rules and treat them as authoritative. Hart declares basic goods and reasons for acting besides ‘survival’ as being controversial. As a result, Hart refuses to enter the classical dialectic, and he shows how unreasonable it is to treat survival as the sole reason for acting. Hart also provides good reasons for benefiting society by having law he treats as entitled to no priority in accounting for the internal attitude of allegiance to the society and its law. “He never responds to the classical objection that, thought these alternative motivations can and do indeed exist, and may be widespread, they can never have the justificatory or even the descriptive explanatory power of the good reasons there are for introducing and upholding law against the pull of careerism or other forms of selfish self-interest, and against conformism to old ways and traditions.” (Coleman, Shapiro 2004) Hart ultimately and firmly employs the distinction between central and secondary cases, and between focal and analogous meanings. Hart continued to set individuals on the road to understanding law as a good reason for action but turns down critical consideration of the reasons needed for action being reasonable. While analyzing both Ronald Dworkin and H. L. A. Hart, it seemed as if the argument leaned more towards Hart’s view and his moral theory. Hart’s general approach to law provided a more intricate understanding of the law and how it could mean so much more to so many people. I agree that the law is very unappreciated because of the harmful ways the law is interpreted. Therefore, I think the H. L. A. Hart’s argument was the most compelling and could provide more use. I believe that Ronald Dworkin’s work was very informative and intricate as well, however, Hart’s connects more with individuals in my opinion.
Question three.
Based off a foundation of ‘basic goods’ and aspects of authentic human flourishing, is where Finnis develops his moral theory. John Finnis is known to other modern English-language legal theorists as one of the best and is particularly known for his work, Natural Law and Natural Rights. This certain work incorporates Thomas Aquinas tradition, emphasizing moral philosophy and meta-theory, while also being a part of contemporary debates regarding the nature of law. Finnis states that the basic goods are indirectly grounded in human nature, in the sense that ‘the basic forms of good grasped by practical understanding are what is good for human beings with the nature they have’. Finnis then comes up with nine intermediate principles in which Finnis labels the basic requirements of practical reasonableness. They are as follows: (1) adopting a coherent plan of life; (2) having no arbitrary preferences among values; (3) having no arbitrary preferences among persons; (4) maintaining a certain detachment from the specific and limited projects one undertakes; (5) not abandoning one’s commitments lightly; (6) not wasting one’s opportunities by using inefficient methods; (7) not choosing to do something that of itself does nothing but damage or impede the realization of or participation in one or more of the basic goods; (8) fostering the common good of one’s community; (9) acting in accordance with one’s conscience. Finnis’s approach is rather more general in voluntarily acting for human goods and avoiding what is opposed to them. Finnis is able to hold the list of basic goods and the principles of practical reasonableness to be self-evident, but by that he does not mean that they are obvious or intuitive or that all reasonable people will immediately agree. However, Finnis’s moral theory has been subject to numerous criticisms, coming from all different variety of alternative views. First is whether Finnis’s combination of ‘basic human goods’ and ‘basic requirements of practical reasonableness’ are sufficient to produce enough answers to be able to answer important moral questions. Critics state that his argument does not have sufficient resources to determine answers on the difficult moral questions that were provided. Also, the challenge whether Finnis moral theory adequately is connected with claims about its accuracy. Steven Smith suggests that Finnis’s approach to ‘the basic goods’ reflects a large divide between the idea of the god and actual persons desires and experiences. Smith argues, with the growing gap closing in between ‘being a good’ and ‘being experienced as a good’, means the potential for disconnection that grows between academic morality and actual moral concerns. Law also plays a role within Finnis’s moral theory, where there are certain common goods that are best obtained through a specific kind of special coordination that law provides, and there is a sense in which participation in the community and in the common good of building a political community is an integral part of living a good life. While Finnis discusses legal theory in a narrow sense, he agrees with Hart: that one should look at law in its fullest form, rather than in a lower form of all systems we consider being ‘legal.’ Finnis continues to go deeper into Hart’s internal perspective, and state that it is the viewpoint of those who not only appeal to practical reasonableness but also are practically reasonable. Finnis’s criticism of legal positivism, is that a proper theory of law will require moral in relation to other theorists works. I is hard for one to understand a reason giving activity like law without the moral evaluation of what it would mean for the official statements and enactments to give citizens a good reason for action in return. Finnis’s moral theory is an internally logical system, because of the focus on ‘basic goods’ and the logic behind why Finnis’s perspective sometimes criticizes others.
Question four.
Utilitarianism is known as a bridge between jurisprudence and philosophy. Utilitarianism lies within the philosophy element of ethics. Ethics is the science of moral in human conduct, which is being used in a sense of organized body of knowledge on a subject. First, ethics determines whether absolute standards of right and wrong exist, if it is possible to know what they are. Second, if such standards do exist, then what specifically they are. “During the twentieth century a third branch of ethics emerged – the examination of how ethical principles that have general acceptance are to be applied in such real life situations as where doctor is faced with the decision whether to facilitate the death of a grossly malformed baby; or with a patient in the terminal stages of cancer who requests that his lie should be brought to an end.” (Riddall 2010) The last aspect of ethics is ethics in relation to current issues, is not currently the concern. Bentham is known as the first linguistic philosopher and assigned central importance to the characteristic technique of linguistic philosophy. In his attempt, he tried to solve philosophical problems by claiming that people will make disastrous claims unless they understand how language works. Bentham believed that general descriptive jurisprudence must confine itself to terminology. Bentham included terms such as power, right, obligation, liberty, and law. He argues if there was meaning provided for these terms, then some of the most important questions that philosophers of law have brought up could be answered, because the individuals would know how to make sense of characteristic legal claims that people make. The fact that such an account could confine itself to terminology, is the absurdity in Bentham’s claim. “His own account of the meaning of those terms is part of an account of what rights, obligations, laws, and so on are. So, in his attention to the corresponding terms, Bentham does not confine himself to terminology, and no one could seriously do so.” (Coleman, Shapiro 2002) Bentham constructed his theory of law with claims about language. He claimed that, in order to say anything clear and meaningful, a theorist had to be able to expand theoretical terms. These are terms calculated to raise images either of substances perceived, or of emotions; sources, one or other of which every idea must be drawn from, to be a clear one. The importance is only physical objects and their sensible characteristics are clearly comprehensive, and only physical and psychological terms have a proper meaning. Bentham provided his two favorite simple terms, pain and pleasure, because he figured there is nothing more sensible than pain and pleasure. We are able to comprehend them clearly enough to say something meaningful with the terms provided. “Three distinctively Benthamite features of this technique of exposition deserve attention: the way in which it exposes duties as fictitious entities, the idea of the ‘proper sense’ of a word, and the notion of the expression of emotion as an alternative to the use of words to refer to sensible entities.” (Coleman, Shapiro 2004) Out of all the pleasures and pain, I believe that pleasures of sense is what I agree with most. The pleasure of being able to use our senses is often taken for granted and the sensibility of your senses is unbelievable.
References
- Coleman, J. L., Shapiro, S., & Coleman, J. L. (2004). The Oxford handbook of jurisprudence and philosophy of law. Oxford: Oxford University Press.
- Riddall, J. G. (2010). Jurisprudence. London: Oxford University Press.