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LAW, ORDER & JUSTICE Criticisms

by Rose Cabug & Camille Joyce Lisay Rules of law is a necessary condition for a just
government, but not a sufficient
Discussion questions
1. What are laws? Marxists​: Protects private property, social inequality
2. Are laws necessarily moral? and class domination
3. Are laws absolute? Feminists​: Biases that favour the interests of men at
4. How do we contend with laws whose the expense of women
contents are problematic? Case in point, Multicultural theorists: Law reflects the values and
death penalty? attitudes of the dominant cultural group and
insensitive to the values and concerns of minority
Laws — means of enforcing norms or standards of groups
social behavior; distinctive social institution
Natural Law and Positive Law
1. Made by the government - reflects the ‘will Law v Morality
of the state’ Law is a distinctive form of social control backed up
2. Compulsory - system of punishment and by means of enforcement whereas ​morality is
coercion concerned about what is ‘right’ and ‘wrong’
3. ‘Public’ quality — consists of published
rules achieved through a formal legislative Natural Law
process conducted by elected officials Humankind should conform to the higher moral
4. Binding - enforced commands embodying principles set out in the doctrine of human rights; the
moral claims purpose of laws is to enforce morality

Perceptions on law Positive Law


Liberal theory​: Law is regarded not as a constraint It seeks to free law from the moral. Law is objective.
upon the individual but as an essential guarantee of Law is the fact of life, and it is absolute. Law is law
his liberty. Without this, the person is constantly because is it obeyed.
under threat.
Locke:​ Law protects individual rights (life, liberty, Liberty
property); protects humankind from barbarism of Mill’s Harm Principle
state of nature. Law has no right to interfere with ‘self-regarding’
actions and should only restrict ‘other-regarding’
Rule of Law actions. Unrestrained liberty is damaging. Hence, this
● A core liberal-democratic principle line of thinking justifies existence of laws.
● Embodying ideas of constitutionalism, ● Self-regarding - the private realm where
limited government people perform their private acts; the law
● Imposes significant constraints upon how does not operate here
law is made and adjudicated ● Other-regarding- the public realm where law
● Laws should be: operates especially when human activities
○ General might pose a harm to others.
○ precisely framed and accessible to
the public Order
○ Irreconcilable with cruel and Control, discipline and obedience
inhuman forms of punishments ● Human nature is corrupt, self-seeking or
○ kept strictly separate from politics egoistical
● People seek safety and security drawn compensation in case of injury or damage
towards the familiar, the known, the (legal justice)
traditional
● Order is imposed ‘from above’, does not Procedural justice - how the rules are made and
occur naturally applies, how decisions/outcomes are achieved
● ‘Without order, life would be solitary, poor,
nasty, brutish and short’ (Hobbes) Substantive justice ​- whether the rules ‘just’ or
● Hobbes feared a return to the evils of the ‘unjust’, content of decisions
state of nature ● Principle of formal equality
● Laws ensure regular, stable, and predictable ● Substantive justice - law must be judged in
forms of behavior which reason, social order the light of a principle of substantive or
suggests continuity (permanence) ‘concrete’ justice
● Augustine’s earthly city and City of God ● Consensus laws - conform to commonly
● Political order forms part of God’s held standards of fairness or justice
providence, hence, obedience to law shall be ● Non-consensus laws - widely regarded as
observed (Medieval philosophy) unacceptable or unjust

Natural harmony, equilibrium and balance Moral justification of law-breaking


● Human beings are rational beings, capable ● Why should I obey the law?
of peaceful resolutions ● What justification of there for breaking the
● Human beings are naturally sociable, law?
cooperative and gregarious, capable of
living together in peace and harmony Criminal offence - no moral justification, nakedly
● Order is natural, arises spontaneously out of self-seeking behavior; common criminals usually
the actions of free individuals acknowledge that they should have obeyed the law,
● Disorder is rooted in the structure of society, and so recognize the law as binding
not in the individual
● Human beings are not born corrupt, but are Political offence - principled and, maybe, justifiable
corrupted by society in moral or political terms; ‘political prisoners’
● ‘Man is born free but is in chain’ (Rosseau) treated differently from everyday criminals
● Solution to social disorder: Abolish all laws
and allow people to act freely Civil disobedience - an overt, public and non-violent
act; break the law to make a point; individual as the
Punishment ultimate moral authority
Punishment has a moral character:
1. Retribution - vengeance against a
wrong-doer
2. Deterrence​ - deter potential wrong-doers
3. Rehabilitation​ - reform the wrong-doer

Justice
● Denotes a particular kind of moral
judgement
● Giving each person what he or she is ‘due’
● No settled of objective concept
● Our concern: the way the law distributes
penalties for wrongdoing, or allocates