Philosophy of Law Part One

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Philosophyof Law



Hartdisagreed with Austin’s theory by stating that the law is explainedbest using the view and opinion of natural moral judgments andstandards. What an individual should consider as law is not what theyhave been commanded, but it is a part that constitutes a moral codethat operates far higher than human beings in the entire universe.Hart states that looking at the law as a decree from someone in powerdoes not fully describe what it entails. An activity between twopeople cannot be used as a law for an entire society or communityunless what was involved relates to the set moral standards that areknown by every person in the society (Hart, p.43). Hart insists thatthe theory of law is broken into two. Primary laws that directlyaffect the people and the secondary laws that do not focus on humanbeings, but work by regulating the primary laws (Hart, p.43).However, Hart retains some aspects of Austin’s theory. He attemptsto explain that primary social laws are the ones accepted andacknowledged by people within a given structure. These rules are wellknown even though they are not necessarily morally right. Hart,therefore, believed that one can accept some aspects that describelaw in Austin’s theory, but they should not fully remove moralityfrom the picture. Hart considers the problem of the penumbra bysaying that the main reason why the law cannot be separated frommorals is that not every law is straightforward. Thus, the problem ofthe penumbra complicates his theory. Some aspects have to be thoughtthrough before one can be seen to have broken a law or not. He claimsthat judges can appeal to the accepted social norms before making aruling in times when the law is too ambiguous for a clear decision tobe made (Hart, p.44). Hart also disagrees with Austin’s theory thatthe law is a decree from a leadership position and when someone doesnot comply with it, they are likely to face punishment (Austin,p.42). He states that social laws are what everyone has grown upknowing what is inherently right. The law is not what defines thebehavior of the society for fear of retribution but what the societyalready knows as their guiding principles. Thus, most laws that areenacted all comply with loyalty for the law and not because it is away of avoiding punishment. Hart stated that Austin’s theory hasbeen taken advantage of by evil administrations such as what happenedin Nazi Germany. He asserts that even if a law may be written down,people should realize that it can be morally wrong. The law should,therefore, not be segregated from morality. Hart calls for anestablishment of legal regulations that include elements of moralvalues. Laws against physical violence, for example, should not befollowed solely because they are already set, but because everyoneknows that as human beings we are vulnerable to injury and that isthe reason why such laws should not be broken (Hart, p.44).


WhatFuller attempts to describe with the statement that law is good orderis that morality should not be included into law, rather it is partof the law. Rules and regulations are always set to bring order andfairness to people in the society. These laws are set in place withan “internal morality” that evaluates whether the rule is rightor not. Fuller tries to show that to remove chaos and mayhem, any lawthat is set must already be created with moral codes and principalsthat ascertain its fairness (Fuller, p.44). Thus, if a law is notfair to everyone within the confinements of its applicability, thenit does not bring order. Such a law will not last for long. I believethat Fuller is correct. Hart misses several situations in his accountof law. Morals differ from one region to the other. What can bemorally right in one place may be wrong in another area. Fuller’stheory that the law in itself should have a sense of moral codesmakes more sense. The law is not a tool for persecuting the innocent,but a tool for securing their lives. The laws that are created inevil regimes usually do not last for long since they go against thevery nature of humanity. The mere inclusion of moral values into alaw that is unfair may not necessarily alter it into becoming a justlaw. As Fuller asserted, the entire point of the law is not just tobring order, but to ensure that in that order, all aspects offairness and justice are put into account. Morals may differ amongdifferent people and cultures, but equality and impartiality arenatural instincts that every person inherently knows (Fuller, p.44).


Accordingto Rev. Martin Luther King, Jr, the line where a person can chosecivil disobedience is when a law ceases to create justice. He statedthat any form of injustice no matter how small the region where itoccurs, can affect the justice of every region (Luther, p. 79). Heinsists that any form of rule that goes against the rights of aminority group should be discarded. Civil disobedience is, therefore,used as a form of protest to the unfair laws. Once a crisis isintroduced into a system that cherishes order, everything will bedone to restore the order. In the case of Rev. Martin Luther, theissue was civil rights and segregation. The African Americancommunity at that time were being treated as outsiders even thoughthey were US citizens. A hundred years after the abolishment ofslavery had done little to change the way the African Americans weretreated. Rev. Martin Luther King Jr had had enough of the unfairnessthat was being portrayed. Former talks with the administration ofthat time had not yielded any tangible results and the next viableoption was active demonstrations. He, however, made it clear thattheir intentions were peaceful and all they wanted was equality amongall Americans (Luther, p. 81). By doing so, he had done civildisobedience in order to fight an unjust law. Martin King Jrsupported his action when asked why he was deliberately breaking thelaw. He responded by saying that an unfair rule cannot be accepted asthe law since it does not comply with the overall law. He wasreferring to the natural law (Luther, p. 80). He went on to add thatan unjust law is a decree that the majority enforces upon theminority. The statement only shows that separation is given legality.A just law is what the majority follow and the minority are motivatedto do the same. That is the definition of equality (Luther, p. 80).Through his guidance and leadership, Rev. Martin Luther King Jreventually achieved his intention for sameness among all Americansthrough civil disobedience.

Accordingto Rawls, civil disobedience is a public, nonviolent and a directaction that goes against the law with the intention of enactingalteration in the law or policy of the administration (Rawls, p. 54).This type of action can only be possible in a purely democraticstate. Rawls confirms that there are various situations where civildisobedience is necessary. The main one is if the intentions of suchan act is to seek justice. When all other avenues such as court casesand other hearings seem not to work, civil disobedience is the bestoption. In the instance where some minority groups are denied theirrights or some beliefs are repressed, one can also consider such anaction as a last resort (Rawls, p. 57). Most civil disobediencesusually fight for the “little person.” In a democratic nation,any grievances that the majority may have can be simply correctedthrough referendums. The minorities, on the other hand, lack theability to do so, when they are wronged or treated unfairly, the linewould have been crossed making them go for civil disobedience as analternative (Rawls, p. 58). However, Rawls cautions on exercisingthis right. In the instance that there are several minority groupsthat have suffered various unjust experiences, and all other channelsof changing the system have failed, they are within their rights toundertake civil disobedience. The problem comes up when differentgroups are taking such actions. The situation will move from simpledisobedience to mass chaos. The best option would be for such groupsto form an alliance that can act as one, thus, ensuring that themovements are peaceful and no infractions are committed (Rawls, p.58). Rawls winds up by stating that civil disobedience is a forumthat needs to be rationally designed to ensure that there will be noinstances of violence especially to innocent third parties.Therefore, civil disobedience is a right that should be used withgreat caution and not haphazardly (Rawls, p. 58).


Accordingto Bilsky, the role of “natality” in Arendt’s understanding ofthe “banality of evil” is to show how human beings can createunexpected situations (Bilsky, p. 149). In history, humanity has beenknown to display acts of cruelty against each other without any formof previous provocation. The example used in the text was the Naziregime that did unspoken evils against the Jews. The Jewish peoplewere taken into concentration camps and tortured without any motive.Many were killed in what is now known as the Holocaust. Through thisdefinition, Arendt was able to understand how most of the officers inNazi Germany were able to carry out gruesome orders without any senseof remorse, disgust, or pity. One of the perpetrators that was ontrial known as Adolf Eichmann, displayed such characteristics. He hadundergone many psyche evaluations until it was confirmed that he wascompletely sane (Bilsky, p. 149). Everyone that witnessed the casewas wondering what could have motivated such a person to kill so manypeople in horrific ways. The accused confessed that while he wascarrying out the orders, he usually detached himself from what he wasdoing. He did not even consider the victim as a person with a familyand friends, just a mere object. His goal was to only accomplish thetask at hand. The only thing he received out of that was anacknowledgement from his superiors. It became clear to the writerthat every action that the former Nazi soldier undertook was justempty of any agenda or passion. Thus, the term “banality of evil.”Arendt explained further that any normal civilization or state couldchange and do unspeakable acts solely due to influence. The evil thatwas committed in Germany is an example of such a case. Most of thepeople that persecuted the Jews did not even have a hatred for them,they only did what was commanded without any emotions involved(Bilsky, p. 150). Thus, the writer was trying to show that a Judge insuch a situation needs to develop new methods of coming up with aruling rather than rely on former opinions on such crimes. Manybelieve that a person that commits mass murder mainly does thatbecause they are monsters inside and they love to kill. The banalityof evil merely shows that not every evil is done by individuals thatare twisted inside. In light of that information, Arendt wanted a newform of trial to be developed that would relate to the unprecedentedcases such as the one she witnessed (Bilsky, p. 150). Consequently,judges should make new ways of determining sentences for crimes thatare very different from the usual ones.


Holmestheory of the “bad man” came about after the Dean of Harvard LawSchool at that time began treating law as a science. This dean wasknown as Christopher Columbus Langdell. Langdell began offeringclasses to law students whereby they were taught law logically.Together with various renowned academics, they came up with a theorythat the nature of the law is a constant system that does not changeover time (Holmes, p. 84). Thus, one could easily deduct by readingthe facts of a case how I judge would pass their ruling. Holmes wasoutraged by this conclusion. The idea that law and the human tendencyto crime could be defined as a science was an extremely mistakenidea. He stated that the nature of the law was not fixed, but wasconstantly changing. Thus, any case made was based on experience andadaptation to new insights into the law (Holmes, p. 84). Judges gainexperience from presiding over different cases and they are stillunable to predict the facts of a new case even if the charges may besimilar to a previous one. To expound on his point, he gave anexample of a bad man who had no concern for the law but his end game.The end game being how much the person could gain without beingcaught and charged with a crime. He gave a case study based oncontracts. Essentially, a contract is not a moral obligation. Aperson that has signed such an agreement is expected to fulfill whatit entails and if they fail to do so, they are given a penalty. Thepenalty is given even when failing to meet the terms of the contractwas not the intention of the person. A bad man in the same situationwill most likely consider whether to fulfill the contract or decidenot to (Holmes, p. 84). In the same instance, causing personal injuryto someone due to negligence will require some payment to be made. Abad man will only look at the same situation as bad luck, not anobligation. Holmes used these examples to show how people that havecriminal tendencies tend to think. He insisted that that is how theirminds work, but no one can ever predict their actions. Thus, thenotion that the natural law could be treated as a field of sciencewas absurd to him (Holmes, p. 84).

Muchas Frank agrees with Holmes that the nature of the law isunpredictable, his understanding of the law is much different. Hebelieves that judges are the ones who define law. He explains bysaying that human beings are created with an ideal view of the worldand how the law restores order (Frank, p. 95). Judges too feel thesame way and when they meet a new case, they usually manipulate thelaw to fit the initial instinct that they had about the ruling. Histheory, therefore, attempts to say that judges make a new law everytime they change their decision about a specific case (Frank, p. 96).The reasoning that Frank has concerning the law places the Judge atthe highest level. The judge is the one that decides the guilty fromthe innocent, and what is right from wrong. This theory is warpedbecause judges are normal people and by Frank making them appear asthe definition of the law itself, he had made an error in judgement.

Holmes’understanding of the law is more feasible than Frank’s view. Holmesexplanation using the bad man examples to show how unpredictable thelaw is makes more sense. A judge or any law student cannot quantifythe number of offenders for a specific crime nor can they find apattern in similar offenses with different offenders. Every case ontrial has unique elements that every judge must first evaluate beforepassing the ruling. Frank’s opinion of the law does not hold water.He states ideas about what goes on in the mind of the judges withoutany valid claim. The manner in which he says that judges twist thelaw to fit the sentence that their first gut tells them makes itevident that Frank himself is warping facts about judges think to fitinto his obscure theory.



Accordingto Austin, the charges against Lt. Watada are appropriate andpunishable with regard to the decision of the martial court. Austin’spositivism theory clearly states that the law should not benecessarily in tandem with morality. He further insists that anenacted law does not focus on what is just, fair or right. If theseelements coincide with a specific law, then it is a mere coincidence(Austin, p.49-54). Austin also firmly believes that the law is adecree from a person or persons in a position of power that everyperson involved must follow or face due punishment (Austin, p.49-54).The individuals in power are defined by Austin as the people that arefrequently obeyed when they command an action to be completed. Thus,if that person gave a decree to their subjects, then that decreebecomes law. The subjects in this situation have no room forquestioning the morality of the law, or whether it is fair or just(Austin, p.49-54). They only have to obey. In relation to the case ofLt. Watada, he was in the service of the US Army and he had made anoath to protect and defend his country from domestic and foreignenemies. The sovereign power in the situation is the President of theUnited States. The president had commanded the army to go into waragainst Iraq whose leadership was believed to support the enemies ofthe US known as Al Qaeda. The administration also claimed that Iraqhad weapons of mass destruction that could threaten the free world.The decree of the president was, therefore, the law. This command waspassed down the chain of command until it was received by Lt. Watada.His response to the direct command was highly inappropriate from theviewpoint of Austin’s theory. The lieutenant refused the commandon the basis that he felt going into combat against Iraq was a warcrime and he felt morally obligated to refrain from participating inthe wrongdoing. Austin’s postulates clearly indicate that the lawis not mixed with moral values. The personal concerns that Watada hadfor the war were not up for consideration. He only had to follow whatwas the law. Lt. Watada’s decision to go to the media to air hisviews was an act of insubordination and deserved to be punishedbecause he had no right to question the law. He should also becharged with other forms of misconduct such as inciting a mutiny anddefamation of his superiors. Through Austin’s theory, Lt. Watadacould face the death penalty.


Accordingto Hart and the theory he proposed regarding the nature of law, Lt.Watada’s charges are appropriate but not punishable. Hart’stheory is that a law is not just a command that is passed from theleaders to their subjects but a combination of primary social lawsand secondary laws. The primary laws involve the rules that relatedirectly to the lives and wellbeing of individuals. The secondarylaws are there to regulate and define the primary laws (Hart,p.61-70). Hart defined this notion using the rule of recognition.People accept what is law not because someone in power has decreedit, but because there are secondary laws that define that law. Forexample, a primary law can state that the US citizens should paytaxes. The secondary law that describes it is that legislaturesenacted the law in accordance with the Constitution (Hart, p.61-70).Hart includes another element into law by saying that legal lawshould not be completely separated from moral values. The reason isthat every law has some ambiguity and they do not directly show howan individual should conduct themselves. Without morality, the lawswill be missing critical elements such as fairness and justice. Sucha situation can lead to catastrophic events such as the holocaustthat occurred in Nazi Germany (Hart, p.61-70). The soldiers thatcarried out Hitler’s commands could defend themselves by sayingthat they were only following the legal law of that time. In essence,he disapproves Austin’s theory that a sovereign leader’s decreeis law. Hart insists that these regimes usually change and the lawsof the society should remain the same for many generations and notshift every time a new leader comes into power (Hart, p.61-70).Considering Lt. Watada’s case in the eyes of Hart, he actedinappropriately by refusing a direct order from his commandingofficer. He had sworn to obey his superiors yet when he was given aduty to go to war for his nation, he broke the oath and insteadcalled a press conference to air his grievances. On the other hand,Lt. Watada’s actions are not deemed punishable. Every citizen inthe US enjoys several freedoms and one of them is the freedom ofspeech. Watada had the right to state his reasons for insubordinationwithout his actions being deemed as mutiny. He did not reveal anyinformation that was not public or could risk the security of the US.In addition to this point, Hart would also include his notion thatmoral values should be included into the law. What Lt. Watada wascommanded to carry out was not legally a law, but merely an orderthat he felt compelled to say was morally wrong. The situation givesthe lieutenant an opportunity of avoiding any criminal charges. Therewas evidence that the US had broken the UN Charter by invading andoccupying Iraq without valid proof that they have weapons of massannihilation. In this case, the United States president is the onethat should be charged with breaking the law that was agreed upon byalmost every country on earth including Iraq.


Accordingto Aquinas’ theory of natural law, the charges against Lt. Watadaare neither appropriate nor punishable. Aquinas used the principlesof naturalism as defined by ancient Greeks and Romans to define thelaw (Aquinas, p.45-46). Using the principles of Aristotle, he statedthat every law must have an objective and for the case of human laws,the objective was happiness for everyone or the mutual good (Aquinas,p.45-46). Aquinas broke down the different rules that are in theuniverse. The highest law was the eternal law, which, was thedescription of God through the Holy Scriptures. The second one wasdivine law that entailed the purpose that God had for humanity. Thehuman laws are created by people in accordance with the natural laws.The natural laws as defined by Aquinas are the eternal laws inrelation to the actions of human beings (Aquinas, p.45-46). Thus,every person was born with the knowledge of what is right from wrong,and what is moral from what is amoral. These principles werenaturally known since human beings are the only creatures that havean ability to reason (Aquinas, p.45-46). From his explanation, thehuman laws should, therefore, comply with the natural laws. Hedeclared that any human law that did not meet this criterion was nota legal law (Aquinas, p.45-46). Thus, he condemned any legal systemthat favored laws that were against fairness and justice such as thelaw that was accepted in Nazi Germany. Many German citizens had tofollow the law as they watched an entire race of people being forcedto leave their homes and go to detention camps without any legitimatereasons. The story of what happened during the rule of the Nazi showshow much evil can be accomplished if the set laws fail to comply withthe natural laws. The holocaust will always be remembered as one ofthe worst events in modern history. According to Aquinas, for everylaw to be considered legal, it should measure up to the higher law.In relation to Lt. Watada, the decision he made was the right one.The US had decided to invade Iraq without any direct provocation orwithout proof that they had nuclear weapons. There were reportedcases of war crimes that were committed on innocent civilians. Watadafelt it was morally wrong for him to participate in the war as he didnot want to be tainted with such wrongs against humankind. The US hadgone against the natural laws by declaring war on Iraq, a war thatwas going to claim the lives of innocents and scar others for life.The decision from the administration at that time was a pervasion ofthe law since it was violent in nature and did not have a goal ofbettering the lives of the citizens of Iraq, but was an act ofrevenge for the September 11thattacks on the US soil. Lt. Watada requested for a different tour ata different region and if that was not possible, he requested for hisresignation to be accepted. After he realized that his requests werenot going to be answered, he then decided to go to the media. Everyaction that Watada took comply with Aquinas’ natural law theorysince he did not want to be part of something that was going to causedeath and destruction.


Accordingto Rawls, the charges against Lt. Watada are appropriate, but theyare not fit for any form of punishment. Rawls’ theory is based oncivil disobedience. He defined the term as a deliberate act ofdefiance, using nonviolent approaches, against a law or governmentpolicy that was unfair to a minority group (Rawls, p. 54-58). Rawlsstated that civil disobedience was a last resort that any small groupselected once every other avenue for airing their grievances failedto provide a viable solution for their problem. Rawls went ahead tosay that the mechanism can only work in a democratic political system(Rawls, p. 54-58). He explained different situations that justifiedthe action. If a small group of people feels that a certain rule thathas been enacted is unfair to their interests and every attempt ataltering the law has failed, they could use civil defiance as a finaloption (Rawls, p. 54-58). Such groups are usually too small to relyon democracy as a solution for their issue. Another scenario is wherethe administration represses certain beliefs or religions. Thesegroups can also use civil disobedience as a way of creating anopportunity for changing the decree (Rawls, p. 54-58). Rawls,however, warned that civil disobedience should not be carried outcarelessly. Proper planning should be done to ensure safety foreveryone including third parties. He gave an example of a nation thatmay have various minority groups that each have their problems aboutcertain laws. Such groups should not just go for the method sincechaos will ensue (Rawls, p. 54-58). The best option will be to mergeand use representatives that can peacefully carry out thedemonstrations. The best example is the civil defiance that was ledby Dr. Martin King Jr as they demonstrated for the civil rights ofthe African America community. In light of Rawls’ opinions, Lt.Watada’s case can be seen as civil disobedience. He had beencommanded to go to a war that he felt was morally wrong. He triedrequesting a different post that was denied and the US militaryrefused his resignation. Everything he did was peaceful and did notendanger any military personnel or civilian. The last option he hadwas to go to the media and tell the American people the reason why hehad disobeyed a direct order. The information that he provided wasalready public knowledge, and he did not reveal any secretsconcerning the US army. His actions were, therefore, justified and heshould not be punished for practicing what was well within hisrights. Subsequently, it is not right that his actions be treated asan act of treason.


Myposition on the appropriate outcome in the Watada case is that thelieutenant is innocent of any crime and that all charges should bedropped. He should be given a choice of being reassigned or handingin his resignation. This stand comes from the theories postulated byAquinas and Rawls. Aquinas’ theory based on natural law seems likethe right definition of what the legal law should entail. The UnitedStates’ Constitution clearly says that the sitting president doesnot have the power to use the US army to serve some personal cause.The invasion of Iraq was clearly retaliation for the attacks thathappened in 2001. The administration declared war on Iraq withoutconcrete evidence that they were a threat to the country, or theywere supporting extremist groups. The laws that are in the UN Charterseem to comply with the natural laws. For the US to invade and occupyIraq, they were going against these natural laws making theirdecision a violent act. Lt. Watada was within his rights to questionauthority since evidence showed that the government had duped theAmerican people including the army by making Iraq appear as animminent threat to the US. Such a situation affirms Aquinas’theory. No government or administration should have the power to maketheir decree a law. If the leaders were allowed to decide what eachlaw entailed without consideration for the natural laws, thenhumanity would not exist as we know it. Rawls theory also makes sensebecause Watada was only exercising civil disobedience after all otherattempts at avoiding going to the war had failed. He publicly statedhis stand on the war in Iraq and why he had refused to participate init. When Rawls’ definition of civil disobedience is evaluated,Watada felt that he was being unjustly forced to commit violence on adifferent nation. The situation paints a worrying image because thesame may have been what was happening in Germany during the regime ofthe Nazi. It is likely that soldiers were required to commit evilacts on the Jewish people even though the majority may have had theirmisgivings. Lt. Watada appears as a true patriot because instead ofhim going AWOL, he chose to go to the media and risk being courtmartialed. My view is, therefore, the natural law position. I believethat no person should blindly follow the law if they feel it ismorally wrong and goes against their principles. If more soldiers inNazi Germany had opted for what Lt. Watada chose to do, maybe theentire holocaust would have never occurred. Laws should only worktowards creating a more harmonious society, and not to cause chaosand destruction. The weakness of my view is that the martial lawfunctions differently from civil law. A soldier that took an oath isnot exempted from defying a direct order from their superiors. It isunlikely that Lt. Watada avoided getting court-martialed for hisinsubordination.


Adams,D. M. (2005). Philosophical problems in the law (4thed.). Wadsworth/ThomsonLearning.

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