Since the inception of modern civilization and
the creation of communities, sets of rules have been imposed to maintain order
in society. The existence of law have subsisted and continued to prevail along
with the growth and development of civilizations. Without a doubt, law has
developed immensely from the early accounts of the Hammurabi code to the more
complex rules in terms of trade and even international relations. (Delgado 2000,
751) In the current context, laws share common attributes and distinctive
differences. Basically, these similarities and differences are based on the
subjective elements found in the political, religious, and social systems are
present. (Winzer 2003, 37) In the same manner, these factors tend to show
resemblance and variation in the way conditions are justified and what are
considered as legitimate or otherwise. In any case, the law has been used as a
tool to deter problems and resolve existing ones. (Lane 2003, 955)
A distinct element that manifests the core of
being human is its being a social entity. (Kaplan 2001, 45) This means that it
is inevitable for man to subsist in a community and interact. It is in this
certainty that establishes the need for social control of these individuals. In
modern societies, institutions that create, implement, and arbitrate using the
law applicable in the land. These arms of the state cleave on the intention to
establish social order and induce progress of society. In general the law seeks
to control society through several areas. For instance, there are laws that take
in hand certain elements that constitute a civil wrong. (Howard 2004, 97)
Basically, this is the area of the law that regulates the rules involving
particular persons. Normally, issues pertaining to agreements and the consequent
liability of one person to another are found in this category of law.
Moreover, there is the area of law which covers
the relationship of the individual with a larger portion of society. Basically,
this part of the law normally involves property and ownership. (Mattei 2000, 33)
The rights of the individual and the rest of the people with regards to use and
possible ownership are often resolved using these laws. In the same line, there
is a set of law that covers the relationship of the individual with the state.
In this area, criminal and administrative laws are often regarded as the most
useful elements in its disposal for prevention and resolution. (Barkow 2006,
989) In the context of criminal law, the area covered is the representation of
the state with the rest of the community. On the other hand, administrative laws
normally take on issues on state institutions that govern and regulate certain
areas of public administration. In addition to these, the law also considers the
relationship of one state with another. (Richardson 1993, 42) In this area,
trade agreements as well as diplomatic formalities are often covered.
The law is essentially an area that bestows
interesting ideas however, there a never-ending debate as to whether the law
tantamount to the fundamental ideals of justice. In essence, this debate notably
falls on the conflicting views of legal positivism and the natural law theories.
In its simplest interpretation, legal positivists maintain that the law has no
correlation whatsoever to the principles of ethics and what is considered moral.
(Huigens 2007, 1793) Basically, this shows that legal positivists maintain the
presumption that the issues of validity or justice, whether is acceptable or
not, does not change the fact that it is still the set of rules which society is
bound to follow. Essentially, law and justice are distinct elements with the
former having ascendancy over the latter.
On the other hand, the natural law theory claims
that legitimacy and validity of the law shows ascendancy over its actual
institutional validity. (Araujo 2001, 1751) Devoid of the said elements, the law
is nothing more than empty verses sought to control society. The proponents of
the natural law intimate that a law should correlate to some form of ethical or
moral validity to fit its label as the “Law.” The problem in this perspective of
the law is that it goes further as it is subjected to different views on
morality and ethics. On this note, it is not surprising that there numerous
interpretations of the natural law. The most notable influence of natural law
theory is seen in the principles involving common law.
The discussions pertaining to the perspective of
the law still begs the question on whether it is the same with justice. The
short answer is “no.” As seen in the legal positivist theory, the law and
justice are essentially different entities. On the case of the natural law, a
law will continue to be a mere rule unless it is infused with another element,
justice. In this consideration, it shows that there is a gaping chasm that
separates law and justice. This chasm is present for several reasons.
Essentially, laws are never perfect. There is no single regulation that fits
every scenario as the ideal response for the issue. There are instances where
politics and unseen compromises are infused in these laws. It is therefore left
on the individual practitioners’ detail to try to find resolutions to certain
cases to make the laws fit the required justice that it deserve, or at least
something close to it. These factors that constitute the overall flaws of the
law, in a sense, continuously widen that chasm between law and justice.
Moreover, this is not the sole reason why this space in between exist. One can
observe that the existing laws and legislation are not enough to put forth
something that resembles a just society. To this end, it is deemed imperative to
ascertain the continuous study of the law in order to find ways to make the law
progressively closer to what society considers as just.
References
Araujo, R. (2001)
“International Law Clients: The Wisdom of Natural Law.” Fordham Urban Law
Journal. 28(6), 1751.
Barkow, R. (2006) “Separation of Powers and the
Criminal Law.” Stanford Law Review. 58(4), 989.
Delgado, R. (2000) “Goodbye to Hammurabi:
Analyzing the Atavistic Appeal of Restorative Justice.” Stanford Law Review.
52(4), 751.
Howard, P. (2004) “Is Civil Litigation a Threat
to Freedom?” Harvard Journal of Law & Public Policy. 28(1), 97.
Huigens, K. (2007) “Jurisprudence of
Punishment.” William and Mary Law Review. 48(5), 1793..
Kaplan, M. (2001) “Post-Postmodern Science and
Religion.” International Journal on World Peace. 18(1), 45.
Lane, E. (2003) “Due Process and Problem-Solving
Courts.” Fordham Urban Law Journal. 30(3), 955. src=”new_page_1_files/image002.gif” v:shapes=”_x0000_s1027″>
Mattei, U. (2000) Basic Principles of
Property Law: A Comparative Legal and Economic Introduction. Connecticut:
Greenwood Press.
Richardson, H. (1993) “The Gulf Crisis and
African-American Interests Under International Law.” American Journal of
International Law. 87(1), 42.
Wizner, S. (2003) “Religious Values, Legal
Ethics, and Poverty Law: A Response to Thomas Shaffer.” Fordham Urban Law
Journal. 31(1), 37.
Credit:ivythesis.typepad.com
0 comments:
Post a Comment