Natural law and positivism

A major debate is whether law and morality should reflect each other exactly. The idea of natural law is that the two should coincide and that there is a divine source for the law. Taken to the extreme, the supporters of natural law would say that legal rules which did notconform withmoral law should be ignored. In other words, if the legal rules of a country are in contrast to the moral laws, the legal rules should be disobeyed.

Positivists, on the other hand, hold that if legal rules have been enacted by the correct procedures, then those legal rules must be obeyed, even if they are not liked and are in conflict with morality.

Law and justice

Justice is truth in action

Benjamin Disraeli 1804-1881

It is often said that the law provides justice, yet this is not always so. Justice is probable the ultimate goal towards which the law should strive, but it is unlikely that law will ever produce ‘justice’ in every case.

First there is the problem of what is meant by ‘justice’. The difficulty of defining justice was commented on by Lord Wright, who said: ‘the guiding principle of a judgein deciding cases is to do justice; that is justice according to the law, but still justice. I have not found any satisfactory definition of justice … what is just in a particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man’.

In some situations people’s concept of what is justice may not be the same. Justice can be seen as applying the rules in the same way to all people, but even this may lead to perceived injustices – indeed rigid application of rules may actually produce injustice.

Rights and duties

All human beings are born free and equal

in dignity and rights.

Universal Declaration of Human Rights

The law gives rights to individuals and methods of enforcing those rights. Quite often the law is involved in a balancing act, trying to ensure that one person’s rights do not affect another person’s rights. In order to keep the balance the law also imposes duties on people.

This is more easily understood by looking at examples. In the law of contract, where one person buys a digital television from a shop each party will have rights and duties under this contract. For example, the shop has the right to be paid the agreed price for the TV, while the buyer has the right to have a set which is in working order.

The idea of rights and duties can also be seen clearly in employment law. An employer has a duty to pay wages to the employee, while the employee has the right to sue for any wages which are owed. An employee has a duty to obey reasonable lawful orders while and employer has a right to expect this and may be able to dismissthe employee if there is a serious breach. An employer has a duty to provide a safe system of work for all employees, while an employee has the right to claim compensation if he is injured because the employer has broken this duty.

Even where there is no contract or agreement between the parties, the law can impose rights and duties on people. An example of this is the right to use one’s own land (this includes a house or a flat) as one wants to. The law recognizes that people have the right to enjoy the use of their own property, but this right is balanced by the right of other land users to enjoy the use of their properties. So the tort of nuisanceallows a claim to be made if one’s enjoyment of land is affected by too much noise, smoke, smells or other nuisances coming from another person’s land.

Even in the criminal law this idea of rights and duties can be seen. The criminal law imposes a duty on all citizens to obey the law or face possible punishment. This duty is imposed to protect other citizens or society as a whole. In this way the law upholds the rights of people not to be assaulted or to have their possessions stolen or whatever else the particular crime involves.

Date: 2016-01-14; view: 869