The boundaries of law and moral principles are thin, complex and intertwined. The factors of merit and demerit, source, subject, obedience, play critical roles in the connections between law and morality. Austin, John, (1790-1859) states that "The 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). Agreement on the rules of law is a jurisprudential debate. The jurisprudence of positivism claims that law exists and depends on social actualities. This legal philosophy provides little regarding the position of morality. To a large extent, it argues that morality is not the basis for defining the law. It faults the dependence and building of a definition of "law" from moral grounds. The law has the potential of being unjust thereby presenting subjects with opportunities of disobedience.
Legal positivism provides a structure which questions of law and morality becomes subjects of debates. One can question the merit or justness of law in a given society. Discussions about the applicability and validity of the law and a legal system are critical to the positivists' philosophy. For instance, legal positivism develops the degree of the claim that law has on personal obedience. The separability thesis, which stands as the fundamental thesis of positivism establishes connections between morality and law. However, it posits that the constitution and existence of law are dependent on social construct and not its merit. Under primary rules, everyone understands and is expected to practice the rules. The secondary rules may be agreed by a majority but enforced and practice by a different group. In most instances it the officials, agents of the state. Often, the subjects of the law have little knowledge of it. Thus, if the rules are not dependent on merit people tend to resist the given secondary rules. This resistance or disobedience is the result of a perception that the rules are unjust.
Delegate your assignment to our experts and they will do the rest.
Culture evolves with the law. The pre-legal era was not completely dysfunctional because of morality. The culture of a nation forms its social construct. A normative understanding of inequality in a given society is characteristic of the primary rule existing in the pre-legal period. A legal system has the potential of reinforcing transition dynamics within a culture. A class system that is a construct of culture is unlikely to improve with the introduction of secondary rules. Through moral principles, secondary rules can indirectly strengthen individual evaluation and response to norms. Humans can indirectly review their culture using the concept of law (Dickson, 2001). A legal system intended to provide justice meets basic tenets of the rule of law. The system ensures that every person or class is a subject to the law. The subjection clarifies the absence of discrimination, prejudice, and exploitation by another class or officials. Waldron (1999) argues that "a system of law may well be more unjust than a simple system of primary rules" (p.175). This possibility of becoming unfair is attributable to the elements of self-interests, class, and bias.
The introduction of law is a process orchestrated by a group of people. The people of a society change according to how the primary rules modify the culture of a community (Waldron, 1999). People resist secondary rules if the transition and integration of the primary and secondary control collide. The conflict of standards minimizes if the source of the secondary rules is understood and accepted. This process of understanding and acceptance is what leads to obedience without fear or coercion.
Obedience to law is not absolute. Hart (1983) admits that individuals do not have the complete obligation to obey the law. People may comply through fear and manipulation. The mutual benefits principle implied by Hart lacks the framework to guarantee every individual the liberty to exercise and participate in the law or obligation. Self-interests and social inequality influences subjection and obedience to the law. Thus, Waldron's argument is that Hart's definition of law is not concise and legal positivism and its proponents are not expounding the possibility of injustice, unjustness in the legal system. The exclusion of the ordinary citizen from the law that governs them creates an opportunity for bias, exploitation, and discrimination.
In sum, legal positivism as held by Hart develops a legal system with a potential of injustice. Its dependence on the social construct and not on merit exposes it to the possibility of not being obeyed.
References
Austin, J. (1832). The Province of Jurisprudence Determined . Ed. W.E. Rumble, 1995. Cambridge: Cambridge University Press.
Dickson, J. (2001). Evaluation and Legal Theory . Oxford: Hart Publishing.
Hart, H.L.A. (1983). Essays on Jurisprudence and Philosophy . Oxford: Clarendon Press.
Waldron, J. (1999). “All We Like Sheep,” 12 Canadian Journal of Law and Jurisprudence 169.
