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Idea of Law by Dennis Lloyd: Chapter 1: Is Law Necessary?
Idea of Law by Dennis Lloyd: Chapter 1: Is Law Necessary?
Is Law Necessary?
Law expresses the view on Man’s nature:
o Inherently good or evil?
Perspective of Man’s nature affects the purpose of the law
o Evil nature law exists to curb passion of man
Thinkers:
1. Ancient China: “A single law enforced by severe penalties is
worth more for the maintenance of order than all the words
of all the sages”
Legists argued that man was initially evil and good ways were
influenced by the social environment (teachings, rituals,
restraints, and penal laws)
6. Machiavelli: “Men are naturally bad and will not observe their
faith towards you”
Greek mythology: Anu (symbol of authority and cosmic order) and Enlil (obedience)
“Without the recognition of some authority whose decrees and sentences determine
the structure of order in the world there can be no organized society and therefore the
authority of divine rule makes possible the functioning of the universe as a social whole.
But without the element of force to ensure obedience to the divine decree the universe
would never attain the role of statehood.”
Authority
Some person is entitled to require the obedience regardless of whether those other
persons are prepared to find the particular order or rule upon them as acceptable or
desirable or not.
Legitimate authority creates the feeling of subordination, relationship between
superior and inferior party
Max Weber: 3 Forms of Authority
1. Charisma:
‘grace’
peculiar form of personal ascendancy which an individual may acquire
in a particular society
also described as a hypnotic effect
key to understanding the concept of legitimacy
2. Traditional Domination:
Authority derived from the leader may pass on to his successors as
observed in new monarchies where descendants of the charismatic
founder derives legitimate authority
3. Legal Domination:
The institutional character of the legitimacy has become impersonal
and legalistic as demonstrated in a democratic state where authority
is institutionalized in the bureaucracy and judiciary which operate
impersonally.
Legal domination can dispense with charisma in this situation.
Force
The force of law is and capable of being enforced by coercion.
Perspectives on the use of force to enforce law argue:
1. Force is the antithesis of law
2. Legal coercion is a matter of incidental procedure, not essential to the existence of
law because people obey the law and consent to it rather than be restrained by it.
3. International law concept of coercion is ironic because civilize countries recognize
and consider international laws as binding but is not enforceable because there are
no international forces to enforce international laws.
Greek:
Greek form of faith emphasized on the rational order of the universe governed by
intelligible law, ascertainable by rational investigation in contrast with moral
mysticism.
Man, as a rational being was capable of understanding the rational physical order of
the universe.
Law is invalid if not justifiable on rational grounds
Duty to obey is not based on what is wrong or immoral but on the authority of the
State
Law and morality reinforce and supplement each other as part of the fabric of social life.
2. Man-made law and moral law have a different realm but moral law is higher.
Conflicts are resolved in favor of moral law.
i. If human law conflicts with moral law, human law is nullified by this relieves
the citizen to obey.
ii. It is a matter left between God and the unjust ruler, the citizen’s duty is to
simply obey.
3. Exclusive autonomy of law and morality, neither can resolve questions of validity
save in its own sphere (Legal Positivism)
Idea of Law by Dennis LLoyd 4/26/2019 5:07:00 AM
Meaning of Nature
There are no rules governing human conduct which are natural to man since these differ
markedly from community to community.
Laws are a mere matter of conventional arrangement and there is nothing in nature which lays
down what these laws should contain.
Nature in man is no more than instinct and much of human laws focus on curbing man’s
instincts.
Stoic Philosophy
Stressed the universality of human nature and brotherhood of man
Reason as essential characteristic of humanity
Propelled the ideal of common law as applicable to all of mankind jus gentium
Grotius:
Even if God did not exist, natural law would still apply because the unique quality in man is his
reason and in the field of international relations, states behaved in this nature and were
therefore governed by natural law.
Legal Positivism
The positivist prefers to concentrate on studying values and exploring how these may best be
realized in current social conditions, rather than postulate absolute and unprovable rules
claimed to be valid at all times.
The lawyer is concerned solely with analyzing legal principles and applying them logically or
systematically to fresh situations as these arise.
Idea of Law by Dennis LLoyd 7/29/2013 8:57:00 AM
The idea of law has always been associated with the idea of justice. The law without justice is a
mockery if not a contradiction.
What is Justice?
Moral value, one of the aims or purposes which man sets himself in order to attain
the good life
Ultimate good is a matter not of demonstration but of choice
Platonic Justice
Justice applies to objects and people in which everything has its proper purpose and
sphere.
Justice is conforming to one’s place in the system based
Substantial Justice
Application of rules in formal justice tend to be procedural. A rule can hardly be said to be a
rule unless it applies generally to whatever persons or situations fall within it.
1. Concrete Justice: scale of values, our choice is not absolutely free and is conditioned
by our history, traditions, social and economic environment.
2. Equity: according to Aristotle, the general nature of rules means that not every
individual situation can be foreseen. The corrective response to conferring
discretionary power to interpret the laws in the spirit of equity instead of insisting
on the hard letter.
Legal Injustice
1. Legal injustice may be done when a case is decided contrary to the law itself
regardless of the substantial aspect of the law.
2. The law is not administered in the spirit of impartiality.
3. The substantial aspect of the law is unjust but it is impartially applied.