Relationship Between Law And Morals Essays

Relationship Between Law And Morals Essays-52
The term ‘necessary’ leads to the conclusion that often law will, in fact, coincide with morality.However this similarity would be through the workings of coincidence and not through the dictates of legal necessity.For Austin law should be an object of ‘scientific’ study the identification of something as law or legally valid was determined neither by prescription nor by moral evaluation; law was simply law and its morality is another issue.

The ‘ought’ part was answered by the key criterion of judging – or as he put it, the ‘sacred truth’ -that the greatest happiness of the greatest number of number is the foundation of morals and legislation.

‘Enlightened self-interest’ provided the key to understanding ethics, so that a person who always acted with a view to his own maximum satisfaction in the long run would always act rightly.

Actually the central foundation of Bentham’s theory was his advocacy on utilitarianism. The classical utilitarian theories took the fundamental basis of morality to be a requirement that happiness should be maximised: the basic principle of utility required us to weigh up the consequences in terms of happiness and unhappiness, of various alternative actions and choose that action which would, on balance, have the best consequence in the sense of producing the largest net of happiness.

John Austin followed Bentham’s utilitarianism theory and tied his analytical method to a systemic exposition of a view of law known as legal positivism.

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In many respects he is the real father of legal positivism although he invoked on notions of natural law that avoided reliance upon a shared notion of excellence or the good put forward by Aristotelian political and jurisprudential thought.

In his famous ‘Leviathan’ he stated that “law, properly is the word of him that by right hath command over others” To Hobbes, law is something posited by man, it does not flow from God’s creation as Hobbes always emphasised on establishing a common power to avoid war between men.

He contrasted between ‘right’ and ‘law’ and thought that each person in the state of nature has a right to everything and urged that law is necessary to make social order possible.

But Hobbes didn’t go further and failed to determine how the state is going to rule and what should guide the state as Stephen Collins argued “….


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