Tuesday, November 3, 2009
The Consistency of Law
The example proposed by Oliver Wendall Holmes would pose difficulties for the natural law approach to legal interpretation since natural law theory relies heavily on what is familiar and natural to man such as the sense of what is morally good and also that this approach is not progressive enough in that it simply restates what has been known to man throughout time. Also there is the problem of certainty, just because something was a certain way before, it does not mean that we can be absolutely certain that it will remain exactly the same way and this especially applies to society and it is always changing and evolving. If we were to fully adhere to the principles of the natural law theory then many of our laws would cease to be consistent with social reality. This is why many laws have changed even during the last twentieth century. Some of the particular laws that come to mind are those governing sexual intercourse and the use of contraceptives, in which the laws clearly had a moral and even religious basis. However as society became more secular and progressive, these laws would have been inconsistent with modern society’s ethics and norms and that is why they were changed or simply abandoned altogether. In cases such as this, it is absolutely necessary to adjust the law to address these realities of a changing society; the same can be said of the many racist laws that upheld segregation only in the previous century, which were once a norm in the United States.
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I think the natural law theorist is going to ask what happens if and when our social priorities take a morally questionable turn. For example, what if a given society thought that its security required opting out of international agreements, torturing people, denying trials to people it takes into custody from all over the world, etc.? In that case, would a realist still be willing to say that laws banning torture, requiring trials for the accused and following through on agreements had become "quaint" or out of touch with social reality?
ReplyDeleteI would like to respond to Josh, i think that we have looked at how hard it has been to say that the realist has the right approach. If you look at what the fundamentals of the realist perspective is, we can see the flaws of the thoughts. In this example, the realist is forced to say that what has happened here in the above example is simply the law. The realist provides the social commentary as what is the law. No matter what the morals or inherent rights that are present, the realist looks at society and tries to deduce the law from what is current in society as it pertains to law.
ReplyDeleteI agree with Alex's post. Laws do need to be consistent in the way that every case that deals with a certain law must be interpreted the same way through precedent. However, some precedents are overturned which constitutes in a new law or new interpretation of the law for future cases to follow. The law must be consistent in order for it to be credible and enforceable.
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