Law as just a System of Rules:
The law is created by the state, enforced by state agents and often with the threat of public damnation or punishment by the state. By looking at the state in this light, it is assumed that the state is a necessary entity in maintaining peace and order in society. In this sense, the law is simply a set of rules.
John Austin's Theory:
John Austin believed that positive laws are set by people for other people to follow. This is done through the command of a sovereign on their citizens with threats of sanction.
In Austin's account, law is not necessarily or intrinsically related to morality, but they certainly so overlap.
‘The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it…’
The Relationship between Morality and Law:
The Hart/Fuller Debate:
There is extensive dialogue between HLA Hart and Lon Fuller within the Harvard Law Review over the link between morality and law. The debate also focused on whether immoral laws are, and should be, valid laws.
The main focus of the debate was on how the German courts should deal with the war crimes committed by the Nazis post World War Two. The main area of contention was that the Nazi laws, despite how abhorrent and immoral they may have been, were valid laws at the time that the crimes were committed. The courts had to decide whether the crimes were punishable under new, retroactive legislation.
Hart:
Hart took the legal positivist view that a laws validity is a question of social fact. At the time, the Nazi laws were valid laws, so the immorality associated with them is irrelevant.
Fuller:
Fuller took the view the view that laws must have a moral standing to be valid. In his view, immoral laws should not be followed.
He set out a further test for whether laws are valid: they must be 'public, clear, non-contradictory, prospective, reliable, possible to comply with and applied as articulated'. Therefore, the Nazi laws were not valid laws and Nazi war criminals should be liable to prosecution.
‘To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order – from the inner morality of law itself – that it ceases to be a legal system.’
The Law as a Product of Wider Social and Political Processes:
The law must be interpreted not only by the words of the Acts themselves, but also in light of how wider society interprets and implements the law.
Legal realism is the study of the effects of legal change and how this directly shapes the law and social views. Socio-legal studies also broadly looks at the actors in the legal system and how their social context impacts the law.
John Griffith's View:
Griffiths believes that to understand the conservative judgements given by the courts, the backgrounds of the judges need to be examined - conservative judgements stem from conservative judges. This is especially important in light of the fact that judges come from a narrow socio-economic background.
Backgrounds of Judges:
30% 'Clarendon' School Educated
70% Oxbridge Graduates
Often 25+ years Bar Experience
Large proportion of judiciary white, male and middle aged.
Sally Engle Merry's View:
Merry argues that law cannot solely be about rules but about how they are actively be interpreted in reality. Just as cases must be viewed on their facts, so must laws.
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