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Laws
In order to decide what laws the country should have, we must decide on what our goals our. Different ideologies will have different goals in mind.
Examples:
- Liberalism will attempt to maximise the individual’s liberty by laying down an individual’s private sphere of action that is free from government interference.
- In a Theocracy, the goal of government will be to please God. As such, the law will be mainly based on religious text and morality.
- On the Conservative left, they believe that it is government’s goal to rule society. They will generally set down laws that aim to maximise a person’s Positive Freedom by making legislation which provides peace and security.
- One thing to note is that Law and Justice are not synonymous. This means that there may be things in society that are regarded as harmful or unpleasant, but are not illegal in the eyes of the law. For instance, bullying is legal in the eyes of the law unless there is a breach of race, sex or disability laws.
- Sometimes it is difficult to draw the line between ‘bullying’ and harmless comments. People can take criticism different ways and some will get more upset than others, so where do we know when to interfere?
- The laws of different states will clash with justice in different ways. One can make reference to Adolf Hitler’s Nazi party with the treatment of the Jews, and Idi Amin’s treatment of Ugandan Asians. Robert Mugabe’s discrimination against whites recently, and the mid 20th century discrimination against non-whites in the USA are also fine examples.
What are the essential elements of the Law? Should law reflect Morality?
Philosophers disagree on these questions, and there are two sides of the spectrum. On one side, you have the Minimalists; and on the other, you have the Maximalists.
Minimalist Theories
- Law is independent of Morality. We can understand the law without reference to Morality.
- The law is a set of commands that represents the will of the government, or the ‘lawmaker’.
- The purpose of the law is to guarantee a minimum state of peace and security, as the State claims a monopoly on all forces of coercion such as the army and the police.
- The power of the law is based on the lawmaker’s ability to enforce it. If a law in un-enforceable, then it is meaningless and has no force.
- Citizens are required to obey the law (coercion), otherwise face the appropriate punishments.
Maximalist Theories
- Law is mutually related to morality. How would we know a just law from an unjust law if we didn’t look at it from a moral point of view?
- The function of the law is to achieve order so that the common good can be achieved
- The law should also provide the minimum of peace and security. This is the prerequisite for a society of order.
- The law does not represent the ‘lawmakers’ will, it represents the product of reason which aims to establish an environment in which people can achieve the common good.
- The state can use legislation to ‘guide’ people into achieving the common good. They can use directive legislation which can persuade people from doing undesirable things, such as smoking and getting mindlessly drunk. They can also use coercion to threaten people with sanction (punishment) if they do commit extremely undesirable offences, such as crime.
It should be noted that the Maximalist and Minimalist theories are not complete opposites. They can both accept ideas from one another without accepting the entire theory.
Liberals will tend to hold the ideal that the law should reflect morality only if the effects are utilitarian sense that they contribute to the general happiness and utility of society. They must also stay within the limits of the Harm Principle, and guarantee a maximisation of a person’s liberty.
Conservatives would argue that there are some moral principles which should be basic in the eyes of the law, such as the right to life. Such natural rights should be enshrined in legislation for the benefit of the common good.
Sometimes, undesirable/immoral things may be allowed by the law, but it has been argued by philosophers that immoral people will be dealt with in other ways. In his book On Liberty, Mill describes and encourages Natural Penalties, which is the result of an immoral person that abides by the law. The government may not be able to interfere with his immoral actions, but he will have the live with the consequences of society’s rejection of him.
Unjust Law
What is a just law?
- A fair law is one that is just
- An unfair law is one that is unjust
So how do we define what laws are fair and what are unfair? We could define these if we look at law in the following areas;
- Who does the law serve? The common good or the interests of the ruler? If the law serves the interests of the ruler while jeopardising the common good, then the law can be said to be unjust.
- Who is the law being put forward by? Some philosophers argue, especially the minimalists, that if the law is being proposed by someone who can neither enforce it coercively, or has the legitimacy for people to take it seriously, then the law becomes unjust.
- Does the law discriminate? If so, is it a fair and relevant discrimination? There is a law which states that sex offenders cannot work around children, but this is a just law as it justly protects society and the common good. However, if there was a law that stated that ginger people could not work around children, then this would be an unjust law as the reasons for discrimination are clearly invalid and irrelevant to the job and the common good.
So, if a law turns out be ‘unjust’, do we as citizens have a right to disobey it? There are conflicting views to this. Socrates was famous for obeying a law which he believed was unjust. He believed that even though the allegations of ‘corrupting Athenian youth’ was completely bogus, and even though he had numerous chances to escape from prison, he decided to remain in prison to be executed as he more or less felt he had a duty to obey the law.
When deciding to disobey a law, there are several things that may have to be taken into consideration.
- How probable success is.
- Whether your disobedience will cause more harm than the unjust law.
- How what you do will effect others.
However, some philosophers such as Thomas Hobbes argued that civil disobedience is wrong. He argued;
- Everybody who lives under a ruler is at a complete obligation to obey the rules which he sets down.
- The ruler is providing security and peace within the state. It may be at expense of some of your liberties, but it is a much better situation than the ‘state of nature’.
- The only time you would possibly be allowed to disobey the law is if it causes a direct risk to your life and security.
- The minimalists also hold a similar view to Hobbes. Since the state claims a monopoly on the use of legitimate coercive force within its territory, then the citizens do not have the legitimacy or power to be able to object to the ruler’s law/will.
Liberals are heavily critical of Hobbes. Liberals accept the conflict between society’s opinion and the opinion of the state. They say that society should disobey an unjust law, but Liberals put more emphasis on discussing the matter. Only through discussion will the law be seen to be unjust, and a new synthesis can be formed afterwards as a result of the two thesis colliding.
Social Contract theory stresses the need for consent under the law.
- Hobbes’ version says consent is given through conquest and/or surrender to a ruler.
- Is this really consent? It would seem like the conquered have no choice but to consent...
- Does the generation after the conquered have the right to disobey the law? They haven’t consented to anything.
- Hobbes’ may argue that simply by continuing to live within the rulers jurisdiction is enough consent.
Examples of Civil Disobedience from history;
- Mahatma Gandhi’s ‘sit-down’ protests for an independent Indian state
- Martin Luther King’s protests against black segregation in the USA in the 1960’s.
- Tiananmen Square protests of 1989 where students were massacred by the Chinese communist government for peacefully protesting against the party. All communist opposing views in China were subsequently silenced by the government.
Punishment
When we punish an offender, we are forcibly taking away his freedom. The amount of freedom we take away from his needs to be decided by the state, and begs the following questions;
- How should the state decide on appropriate penalties for breaches of the law?
- What should we aim to achieve by punishing offenders?
Retribution
- There are two things which make up the crime. The ‘guilty mind’ and the ‘guilty action’. Both of these are required to punish the criminal.
- If the criminal intentionally breaks the law, they he will be made to pay for his crimes.
- Subscribes to a sense of justice which seeks to get revenge for the victim.
- The criminal gets what he deserves, regardless of whether there are any beneficial factors for him or society as a whole.
- ‘Eye-for-an-eye’
- This idea of retribution only appeals to the baser and cruder feelings associated with justice. ‘Revenge’ is generally regarded as a very crude response to being harmed and is even exhibited in animals.
- What effects does this have on the criminal? The criminal may be likely to commit the crime again once he has been punished. In retributivism, there is no attention to the effects on society or the criminal. The only thing that matters is that the criminal has paid for what he did.
Deterrence
- The criminal is made an example of.
- The punishment will hopefully deter others from committing the same crime under fear of meeting the same consequences.
- Public Hanging and Public Humiliation are perfect examples of deterrent punishments.
- Major criticism is that this form of punishment could be used to justify punishing the innocent, as long as it deters others from committing the same crime.
- Critics have argued that punishment as a deterrent simply doesn’t work. Re-offending rates also seems to show that some criminals who leave prison seem undeterred to commit further crime in the future.
- In some circumstances, deterrence simply won’t enter into the equation of a guilty mind. For instance, if Woman’s husband cheats on her and she decides to poison his dinner, then the consequences of her actions will not matter to her.
The protection of society
- If criminals are locked up, then they cannot harm anybody
- Protects society from people who are likely to keep on committing crime.
- The criminals have to be released someday; we can’t sweep them under the rug. In the long term, it doesn’t work.
- Society doesn’t need to be protected from certain crimes. For instance, the woman who poisons her husband because he is having an affair is unlikely to commit the same crime again.
Reformation and Rehabilitation
- Instead of forcing the criminal to act in a certain way, we can try and change their characters into a law-abiding one.
- Punishment will serve to change their character so that they will not commit crime again.
- Methods such as Anger Management have been shown to effectively reduce the likelihood of re-offending in some criminals.
- Sex offenders can be placed into counseling sessions with a Psychiatrist and other offenders to be taught how to control their actions.
- Criticism that this doesn’t work in a lot of cases. Some people, such as paedophiles, cannot be cured of their desires.
- Some offenders do not need to be reformed as they are unlikely to commit the same crime again. For instance, there is no point in trying to reform someone who has only committed petty theft.
- Even though this has met with some success, the public are not so convinced that this is really justice for the victims of crime.
Also See
Comments
These notes are aimed at A Level Philosophy students for the module on 'Political Philosophy'.
Originally written by coldplasma on TSR Forums.
