Law's Authority Comes from Its Ability to Create a Moral Obligation to Follow It

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  • Topic: Jurisprudence, Legal positivism, Morality
  • Pages : 14 (5671 words )
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  • Published : February 11, 2013
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Law’s Authority comes from its ability to create a moral obligation to follow it.

The question of whether or not Law’s authority results from the fact that it has a moral obligation is one which has been heavily debated for centuries. It seems that the biggest proportion of this debate has been sparked by the emergence of legal positivism and utilitarianism from writers such as Hobbes, John Austin, and H.L.A Hart. Before this train of thought, morality in law was seen as a key necessity and was left to a great extent unopposed; arguably until Hobbes revolutionised the field of jurisprudence with his theories of legal positivism and utilitarianism. This way of thinking was further bolstered by the writings of Austin, Hart and later Joseph Raz. Yet it would be safe to say that this debate took centre stage as a result of the Hart-Dworkin debate. After Hart’s response to Austin’s theory of legal positivism, it was consequently fiercely rebutted by Dworkin and Hart replied in a post script of a second addition of his book ‘The Concept of Law’. Two theories of law and the concept of its ‘moral obligations’ were at loggerheads and became a big talking point in the world of jurisprudence. However this was not the only time this has been debated, there have been several natural lawyer theorists in the past to have analysed whether or not law derives authority from a moral obligation. For instance, as we have already mentioned, Ronald Dworkin, Professor Finnis, John Locke, with his ‘consent’ theory, and even as early as Socrates who developed the idea of being ‘gratuitous’ towards the state. Although it seems that the idea of there being a moral obligation to follow the law is flawed in certain respects, this essay will attempt to critically analyse both sides of the argument and hopefully develop an understanding of which of the theories seems most appealing, and why it is so.

To agree with the title of this essay would be safe to assume that this would be taking on the traditionalist view to this debate. For many years, even far back as ancient Greece, it was this argument that always took precedent and was left reasonably unchallenged up until modern times. Paradoxically it does seem now that the strongest argument, nowadays, in relation to this debate, come from the side that disagrees with the statement we are discussing. Although this may be true, this essay will start by analysing the arguments that agree with the statement and a good starting point in doing so would be to analyse a modern theory advanced by Professor Finnis, who invites us to think of 'fairness' in the community as a reason for why law does and can create moral obligations in which its authority can be derived from. Finnis draws are attention to the ideal of comparing the law to what can be seen as a chain or a web of rights and duties in which citizens are all apart off. All of those in within the scope of the law, or this web, are all linked to one another due to the benefits and rights which the law grants them and protects them by governing all of the subjects. He devises this analogy in order to show us that the law is there to provide fairness between everyone in its scope, thus there is a moral obligation created by it. The restraints in which law imposes on us are just because they are ensuring that the whole of society is being treated fairly as a whole. Subjects cannot pick and choose what rights, duties, benefits or protections they want or do not want. Finnis firmly believes that if the law is incapable of creating or adopting a moral obligation to follow it, it will comprise the authority of the law; if members of this 'web of fairness' were to be allowed to pick and choose from the allocated rights and duties it would seriously undermine its authority., thus doing away with the age old problem of 'who can have a moral obligation to obey the law if they do not consent to it'. Thus we can draw from this theory that the moral obligation...
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