Whether law does reflect the values of a community is quite a different matter, one on which it is more difficult to reach a substantive conclusion. In order to determine this fundamental question I find it necessary to discuss the different forms of community. When I think of the term 'community' I immediately imagine a small town or village. However, communities range from villages on the local level, to cities and states at the national level, and to international agreements between states such as the European community.
The values differ at every level, however the fundamental values remain the same. I believe that laws do reflect the values of some communities but not others. In a community where a rule needs to be validated as applicable law, by fulfilling a test of moral merit specified in principles of lawful legitimacy, then I would state that, in this particular community there is an essential association between the subsistence of law and the integrity of that law. It is clear that in both my local and national community systems, many functioning principles of legal authority include moral philosophy.
For example, that our laws are embracing the principles of generality, clarity and openness is in itself moral, as the people can see for themselves. I feel it is when the laws are kept secret from the people, similar to what was done in Nazi Germany, then this is clearly immoral, since the people cannot see, and thus are not aware of the laws, this therefore fails to reflect the communities' values. Fuller described this along with his seven other "principles of legality"11 as constituting an "internal morality of law".
On a global scale however, I do not feel laws do always reflect the fundamental values of communities. Since the end of the Second World War, international trading and production has risen substantially. This has led to the growth of the Global financial market, which has made corporate bodies, such as large manufacturing companies far more powerful than they used to be. The problem with this, is that it poses a threat to nation States sovereignty and their ability to control their own economy. It also means that States are always out to please international companies in a vain effort to secure contracts.
This is clearly a drive towards capitalism and often moral standards are given a back seat to efficacy, as seen in the sweatshops in countries like India. It also gives these large corporate bodies political sway in States' policies, which is clearly immoral, as they are not elected. As Loughlin states "Globalization may not destroy the State, but it may lead to the obliteration … of sovereignty as an expression of the manner in which power is wielded by rulers and conceded by the ruled. "13 Another community level affected by this growth of interdependence is that of the European community.
However the loss of sovereignty at this level is far more extensive as all the Sates in the EU signed away part of their "sovereign rights"14. This means that certain decisions will be made at the EU level that affect the member States rather than at national level where the people and the government have far more say in the matter. I believe that until the values and beliefs of our national community change in favour of this great interdependency with Europe, their laws do not entirely reflect our communities' values.
However these are not the only changes to come from Europe. Their directives have caused the UK government to pass the Human Rights Act 1998 which I believe does indeed reflect the communities' values. The same can be said on the international level. With the passing of the UN Declaration of Human Rights, a new age of rights has commenced, which has had significant impact on our laws. Article 1 states that "All humans are born free and equal in dignity and rights"15. This is clearly more inline with our modern day rights culture.
This is in keeping with Dworkin's idea that "each person is owed equal respect simply by virtue of being a person"16. Due to this new rights culture, the law is moving into different unexplored areas, which is causing two things to happen, the politicisation of law and the legalization of politics. This gives judges the power to legislate, in essence to perform political tasks and make decision of distributive justice. Judges can now use such processes as judicial review far more freely now to reverse a political decision made by an authority of the government.
This I know is undemocratic and against the rule of law and thus does not reflect the values of the community in that the judges are not elected, yet are interfering with decisions of a political nature. The advantage of this is that it allows the people to hold ministers and other authorities to account for their decisions. Feminist jurisprudence is a branch of Critical Legal studies (CLS), which has attacked traditional jurisprudence with the claim that law favours men over woman, that a society that is based on equal treatment under the rule of law does nothing to help woman from being discriminated in the workplace and in the courts.
I must agree that women have for the last 100 years been discriminated against under the pretext that they are physically weaker than men and that most judges and politicians are white men. I therefore feel that more should be done to bring the law further inline with the values that all persons are equal to one and should this be one another. However, that is not to say a great deal has not been done in order to prevents this kind of discrimination. Another criticism is made by Marx about the law.
He does not deny that people have a moral value structure and that it influences the laws, however he states that these values are nothing more than an expression of the same class whose interests are dominant in society. I cannot agree with Marx on his point, as he may have been right when he was writing it, but in the present day, however, at the class system although not completely vanished has deteriorated a great deal, enough to make Marx's concern almost irrelevant. The final last two types of community are those of the political and economic community.
The political community functions by the defence of political legitimacy; this is the right of a political community to treat its people as having obligations in high merit of shared community decisions. People in these types of society are driven by very strong passion for justice and fairness in the world so much so that they can not see any distinction between other societies and their own. However, they only follow these principles to extent that they can benefit themselves and their views of justice soon as the benefit is reached, the person will seek a new one.
The economic community is based on the principle that people should always act in whatever way will be classed to be the financially least expensive. It deals with a principle of community wealth with fixed laws to reflect this principle. Either of these societies' laws reflects well the values of a community. The political one does not seem to take anyone's views into consideration and the economic society is hell bent on making as much money as it can, thinking this will lead to a happy community.
In conclusion, I feel that laws can reflect the values of a community as they stem from fundamental principles engraved in us since birth. Thus if we plan to make any new laws it is from these morals and values that we will find the structure of the law. As to whether law does reflect the values of community, I am not so convinced. In some cases it does, such as the human rights law but in other cases it does not, as seen with the growing power of the judiciary to make political decisions