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18, 2017

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Law v. Morals


Law plays a huge part of everybody’s life. To
each of us it means a distinctive thing. Historically, the idea of law has also
changed many times. In ancient times, as revealed in the old testament, there
were a set of laws which were established by God. Each law was linked with
divine ruling rather than political needs. Today, laws are made by government
officials, who establish norms we live by according to society needs. Problems
arise when civil law conflicts with moral laws. Is it more important that laws
reflect some moral principle or stray away? Thomas Aquinas, John Austin, and
H.L.A Hart are philosophers with distinctive theories on how laws are created
and established. Thomas Aquinas was a priest who believed everything was
created by God; therefore, laws should have a moral ground. John Austin a legal
theorist claimed that legal law should clearly stray away from moral influence.

However, H.L. A Hart by far had the best theory. Hart believed that law and
morality were closely related. Humans accept laws that maintain a political
need for social order and accordance to person connection to those laws.  

According, to Thomas Aquinas, he claimed that
God created everything. Aquinas ideas were based on the natural law theory. Natural
Law theory claims that the law is based on what’s “right”. By using reasoning,
humans can choose between what’s “good” and what’s “bad”.  He followed Aristotle thinking about how acts
of good and bad behavior ultimately define our happiness.

“The first principle in practical matters,
which are the object of the practical reason, is the last end, and the last end
of human life is bliss or happiness, as stated above. Consequently, the law
must needs regard principally the relationship to happiness. Moreover, since
every part is ordained to the whole as imperfect to perfect, and since a single
man is part of the perfect community, the law must needs regards properly the
relationship to universal happiness” (Aquinas).

thing that God creates has a purpose and a natural flow which leads to universal
happiness as a whole. When it comes to laws, each law should be in accordance
with the fundamental of natural law. Natural law is morally justified and is
driven by God’s own expectation for human.

            The theory of natural law is dependent
on human intelligence. Better yet, natural law depends on humans’ interpretation
of what god considers to be of “good” nature. According to Aquinas, God is the
source of intelligence which he shared with mankind when God created us. For example,
a man steals money from another man to feed his family. Today, government
officials have dictated that anybody who steals from another person should be
punished and sentenced to jail time for his/ her acts. If mankind were solely
driven by Aquinas’s theory, the man who stole money would have been morally
justified. It is human nature to survive. In order, to survive he needs money
to feed himself and his family. This justification leads him to happiness
because he will survive another day. Furthermore, what happens when a person
doesn’t believe in God? Is a person not held to any standards? In general, laws
should be made to keep community members safe from the harm of one another.

John Austin believed that only legal
representatives, like government officials, have authority to create laws. He
stated that, “The matter of jurisprudence is positive law, simply and strictly
so called: or law set by political superiors to political inferiors” (Austin). To
Austin, it’s not a law unless a government official has made it one’s legal
obligation to do so. He suggests that all laws were once influenced by “commands”
set out by a sovereign.  He
continued to explain that, “where a
positive law, not fashioned on a custom, is favourably received by the governed
and enforced by their opinions or sentiments, we must deem the so called law,
set by those opinions or sentiments, a law imperative and proper of the supreme
political power” (Austin). For Austin, it is important that there is a
development of law in a rational way rather than focusing solely on its moral
contribution. Austin makes the distinction between a “desire” and a “command”.  A desire to follow a law is not as great as
being commanded to obey a law. Aquinas theory motivated people to do the right
thing, in order, to find happiness; whereas, Austin’s theory reinforcement
sanctions created by government official to entice people to follow laws.

On the other hand, Hart understood the
relationship between law and morality he believed it was minimal. He accepted
that people would use morals to justify obeying laws and it is a technique to obligate
others to follow the laws, as well. But he believes there is rational
connection between law and force or between morals and civil law. He classifies
laws into two into categories: primary and secondary rules. Primary rules are “duty
imposing” rules that require people to act a certain way. In order, for primary
rules to function well, the rules must be clear and rational so that anybody
can understand the law correctly. For example, the U. S Constitution gives every
person the right to freedom of speech which would be considered a primary rule.

Secondary rules recognize and validate primary rules. In layman terms, it’s  rules for rules themselves.




Hart develops his understanding of natural
law from basic human condition:

Humans are vulnerable

Humans are equal

Humans believe in truism

Humans have limited resources

Humans have limited understanding

doing so, Hart acknowledges that morals and law do have some sort of

            There has been a many arguments
between the connection of morals to civil law.