"We are told that we all have an obligation to obey the law, yet natural law theorists argue that a completely unjust rule lacks the moral content to render it a legal rule, and we are not obliged to obey such a rule. To take this approach is a recipe for anarchy. " When looking at the work of various philosophers, it can be argued from different angles to what the question is really stating and if there is a strong argument. However one can say those pure theories maybe, to some degree are affected by the conditions and the circumstances of the time in which we live in.
First factor considered in the argument would be using natural law. It can be defined in terms of human nature like instincts. An example would be what our own expectations are internally. This is defined as what our expectations and morals would lead to and what our actions would be. According to the natural law theorists the laws set out by government, should be developed according to the societies needs. This was an idea, which had been created during the period of Romans and the Greeks.
This idea was undertaken in the middle ages so therefore it was acquired to help in the eyes of laws as it was used to sort out disputes between parties. It was seen as that judge and jurists frequently referred to natural law, natural justice and natural rights 1 in order to decide on case. The natural law theorists argue that morality and laws laid down by government hold a connection. They also argue that the government laws should have a connection to human nature. It is said that if the government made laws do not hold a strong link with morality, so therefore we should not obey them.
Natural law can give an individual the right to adapt a certain type of category. This would merely be stated under various aspects of a utilitarianism (which I will refer to later on), and government law (law that is stated by judges) and its obligations. As it has been referred that the cycle through which man has passed in working out the relations of law and ethics2. In more precise terms natural law referrers to settling matters, which are not laws passed by the government. We are able to consider the expression of conscience, as this is an effective way of regulating conduct with the authority (government).
This is then related on to the fact that conscience is a way of pleasing to the external authority (the government). The whole aspect of conscience binds together for the authorisation that then produce a feeling of well being and security. Here a typical example would be if my parents wanted me to become a Barrister but my ambition was to become a singer. So therefore I would feel consciously guilty for not having pleased the authorities (my parents) this would be considered as feeling guilty internally and feeling repressed and the patterns of our culture to support this repression.
For a while the argument of conscience, we are able to consider religion. This means that it is able to consider moral judgements. Therefore the factor of conscience falls into being powers that are brought to take on morals issues. However Thomas, theory has been adapted by later philosophisers and considered to the fact that society had there believes on eternal law, which was laid down by God. According to Thomas, the legal philosophy for example rested firmly on the teachings of the church, so therefore he developed the idea of "natural law implanted in humans being as part of their nature3. Hart stated...
where there is law there is also morality, and they regulate the same matters by analogous techniques4. In order to say that laws deal with morality and the subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. The whole argument holds a strong view from the positivist's point of view. There basic argument is that morality and government laws do not connect in any way. According to Kelsen government law do not connect with morality Legal positivists can be considered in the argument if we are to obey the law.
Kelsen had a very different view. He argued that law and morality are entirely separate concept and that it should be followed using justice. Kelsen writes, "Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the universal form of this governance, namely obligation. " (Kelsen 1928, p. 34)5. This is because positivists referee to the facts and the separation of law and morals this can therefore be based on the logic that an individual positively has mere preference of values.
Most legal positivists say that the law is made according to correct procedures, so therefore it should be followed with an extent of morality and conflict. It is said that it is our legal duty to obey laws stipulated by the government and other law making bodies, an obligation is considered as a factor of life and that a person has a wide range of things within our power. It is has been verified to the extent that what ever we may desire, and not because what we are forced to do so6. According to Finnis obligations convenient for signifying a wide range of notions that there are things, within our power, either to do or not to do7.
To a certain extent I do agree with what Finnis has stated about obligations, that we should follow set rules as they are regardless of what out desires maybe in life. The whole situation leads on to an important sector of a positivist's point of view. An important question arises as to the extent to which we must follow these rules and to what levels are we able to obey (positivist laws). As existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether It be or be not conformable to an assumed standard, is a different enquiry.
" (1832, p. 157) 8. Within morality there are laws these can be considered as general norms. This indicates a set of customs that involves the disapproval of a community rather then sanction if such a rule is broken. Rules can be related to our general lives, this is because a person needs to use a set of rules in order to live their way of life. Rules are generally obeying for one of their reasons, they maybe in order to sense morals and obligations to have rules that are considered to be reasonable and relevant.
An example is if a person was to have a penalty imposed on them if the rules are broken. Under the influence of relativism one can generally use morality in various ways i. e. : law and morality and its rules and regulations lay down. In general context morality is to be defined as an aspect of beliefs, so maybe this would be affected by religion. This simply leads onto moral code, which is defined as what we may think in some circumstance not acceptable behaviour. It can differ from culture to culture and also from individual to individual.
We may at time think that it is universal unacceptable. In simple terms law and morality could be considered as being influenced by the society in which we are surrounded by. The law does not always provide justice and should be an aim to the legal system. An example is the law in the East and the West, (Middle East countries) the government says that you may cut off a person hand, if they have committed crimes like theft. As this is only acceptable country's like Saudi Arabia but not acceptable universally i. e. in united Kingdom.
Then a question would be that justice can be very difficult to define, this is because it is considered to have different meaning for different people. An example would be treating or imposing same sentence from the same crime or maybe giving the same remedy for the same loss. This leads onto a term "utilitarianism". It is a theory that merely moves from most basic principles of natural law, but still having the main focus on the conflict between legal rules and the divine law. As Bentham put this aspect as the purpose of laws to achieve the greatest happiness for the greatest number.
As stated Bentham held, advantages to a moral philosophy based on a principle of utility9. To begin with, the principle of utility is (compared to other moral principles) clear, allows for objective and disinterested public discussion, and it also enables decisions to be made. While focusing on a important issues, that the way in which German government was undertaking their duties that are assigned to them. This issue can be taken on a little further, because justice should be applied. It is a universal factor that rules should be followed, no matter what ones believes maybe.
At this point of the discussion it is suggested that we are not obliged to follow "unjust law" an example is Nazi legistion (Law) that the whole country had to obey what Hitler had said. One type of rule laid down by Hitler was to deprive the Jewish citizens of German nationality. Although it is stated that there was no explicit appeal to natural law, but H. L. A Hart had disagreed with the implications of positive law within in Germany, which only one minority was suffering at the that period of time.
This whole argument can be concluded, "do we really have an obligation to follow the laws and the regulation which are laid out to the society. It basically all relies on the forms which firstly introduce the contradiction of any argument. Here it is classified between the society and the government, a contradiction, which over time changes according to the circumstances and the natural character that forms the basis of any judicial power. It is considered the law comes from some divine power, this can be classified as powerful and that it does not follow morality.
To my point of view I think that one should follow the rules, which are set out by the government. This is merely because the society needs to have some type of conduct in order to keep discipline. An example would be if the government did not have rules then people would behave in an inappropriate manner. But natural law theorist would say that government law should not be obeyed. This is also true because some people of the society have very strong believes within themselves, so therefore it can be said that while a person has there internal morals they should also obey the external laws.
It all leads to that as the society approaches the modern world peoples believes change according to the external pressure. An example of externally pressure would be to keep up with technology and other factor, which we are seem to develop in while the world move on. Also as there are always new ideas which are created, and that help us to live our lives today. Therefore we must obey laws regardless of natural law theorist moral content. This is purely because moral content has no relevant link with legality.