Saturday, July 18, 2009
Superfluous opinions on the theories
I thoroughly advocate the natural law theory because I think that in talking about the divine law, and about upholding morality and the right thing to do, it aims at what’s best for society, and at attaining happiness in the community. The complexity in determining what these things are, and our ever-changing views on what’s right makes it difficult to hold strictly to this theory, but it still looks at the sources which would be reasonably best for society. By looking at only what’s accessible to the human mind, the positivists just make the work easier; but, even in the case of natural law theorists one’s not looking at anything beyond the human mind’s grasp (that’s not possible!). Even if we look at social conventions to formulate laws, those conventions are laid out for the society to function better and therefore they probably carry some moral component in them. As for the realists, I think their work is very crucial because it gives an understanding of what actually happens when judges are deciding cases. Irrespective of whether it’s right or wrong, if that’s how it happens, then developing further on this reality would help bring the legal system to the way one thinks it should be. If judges have to keep being unjust themselves by deciding cases depending upon sociological factors and find laws to cover up their judgements, then accepting this reality and learning how it can be controlled or just knowing that other factors influence a judge would give an understanding of what credibility a judge’s decision should really have.
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I don’t think that the morality upheld in law is necessarily divine. Judges and lawyers may make claims that their idea of morality has an origin in a divine being, or scripture but I believe that the law they are upholding isn’t divine, they may believe it’s divine but rather they are upholding what law is to them. Law as a structure or laws in their origin may have an objective basis, a basis of actuality but as I have seen law and how law is enforced everything seems to be subjective. People may make the claim that they are appealing to an objective idea, but really it’s just their own thought.
ReplyDeleteI do however; agree with you that by acknowledging the factors that influence a judge, whether they are of a moral basis or through subconscious sociological factors, one has the potential of correcting them and manipulating law in a way to further benefit society.