PHILOSOPHY OF LAW
By: Peter OMONZEJELE
This is the use of Philosophy in critically evaluating the principles of Law. The first question that comes to the mind of the Philosopher is that asked by Dennis Lloyd: Is Law necessary? According to D. Lloyd this may seem a simple perhaps unnecessary question but on further reflection, one may see the reason(s) for the question. He puts it as follows:
…The feeling that law inherently is or should be necessary for man in a properly ordered society receives little encouragement for the long succession of leading Western philosophers from Plato to Karl Marx who, in one way or another, have lent their support to the rejection of law. Hostility towards law has also played an important part in many of the great religious systems of East and West… apart from the Marxists; there are still to the found other serious supporters of a doctrine of anarchism as an answer to man’s besetting, personal and social problems.
It can no longer be taken for granted that law is a needed appendix of society, rather it is what should be pondered upon.
However, there are those who strongly feel the need for laws in society. For instance, Lon Fuller, in his book, The Morality of Law, said that,
Law must be promulgated, intelligible, perspective, noncontradictory, general, avoid frequent changes and official action must be congruent with promulgated rules.
It follows that there is no agreement on the necessity of laws in the society.
What then is the purpose of Law? It is for the maintenance if order in the society, which allows for social equilibrium. Laws are usually implemented or enforced by a constituted body or organ. The function of Law according to T. Parson, is a “generalized mechanism of social control that operates diffusely in virtually all sectors of the community,” and the primary purpose of law is to integrate potential elements of conflict and to oil the machinery of social intercourse. It is indeed only by adherence to a system of rules, that systems of social intervention can function without breaking down into overt or chronic social conflict.
Hoebel has suggested that Law is more than custom and less than social controls. Custom consists of social norms. It is a visual and accepted way of behaviour within a particular social group. Social control encompasses rewards to punishment. Laws are not promulgated merely to protect the customs of a people but more importantly, laws define the relationship amongst the people and organs of a given society. According to Hoebel, Law also defines who has authority and authority over what.
At this juncture we may take a brief look at the various theories of what constitutes Law from a historical perspective. Among the theories to be considered here are: the Naturalist and he Positivist Law theories.
The Natural law is the application of law based on Universal reason. This is more lucidly explained by Glenville Williams.
It is the law of reason as has been established by that reason by which the world is governed, also as being addressed to and perceived by the rational nature of man.
The Medieval Philosophers did not see Natural law only from a secular perspective. For instance, Aquinas opined that apart from secular reason, Moral laws are also gotten through divine sources. He saw reason through divine source as superior to that sourced naturally. There seems to be a fusion of both the Natural and Moral Laws, and if not a fusion, at least there is no clear-cut demarcation. According to F. Kessler, in his Theoretic Basis of Law,
…in the existence of certain fundamental legal principles and institutions deeply grounded in the general plan of life and inherent in all other in all other social existence. These principles laying down absolute standards of justice are open to man’s cognition.
Hence Natural Laws could be secular (in consonance with the laws of Nature) and it could be by divine injunction. Other proponents of the Natural Law Theory are Thomas Aquinas, Cicero, Aristotle, J. Carness etc. For them any law that goes against the percepts of Natural Law cannot be a good or just law. There are shortcomings with natural law theory, which we need not bother with here. For instance how do we enforce a law that is divinely ordained?
The Positivist Law Theory would simply be laws with or without any moral grounding. Such laws do not face a moral test nor do they need an empirical rest because morality and law are divorced. Philosophers who belong to the positivist camp are J. Austin J. Betham, H.A.L. Hart, etc. Julius Stone, in his work explained that laws were self-consistent systems and laws do not provide frameworks for the distribution of power structure, rather laws should be seen as “isolated concepts”.
Other than the two theories of Law (natural and positivist) there are others: the Historical and Marxist theories of Law.
Must laws be obeyed? To give response to the question: If laws must be obeyed, there is perhaps the need to rephrase the question. Are there any grounds for disobeying laws? Is Civil disobedience justifiable? (Not to obey laws promulgated by authorized or competent authority is civil disobedience).
According to N. Gandhi, civil disobedience is part of the fundamental human rights of all humankind and not to have it, to be less than human civil disobedience is the right to disagree. It is the right to say ‘no’ when others say ‘yes’ or to say ‘yes when others say ‘no’. According to Jane Sharp, civil disobedience is a peaceful disagreement with constituted authorities.
It is deliberate, open and peaceful violation of particular laws, decrees, ordinances, military or police instruction and the like which are believed to be illegitimate for some reasons.
While Howard Zinn defined Civil Disobedience as that which involves the deliberate violation of a law for a vital social purpose, ” the question is, is Civil Disobedience permissible?
It is usually agreed by some Philosophers that civil disobedience is permissible especially when some laws are perceived as morally wrong.
Those who hold contrary opinion are Philosophers like Socrates, Hobbes etc. They are of the opinion that laws made by competent authorities of any state must be obeyed by all who belong or accept to belong to that state. There is simply no room for Civil Disobedience.