2.5 Natural law and positivism

A major debate is whether law and morality should reflect each other exactly. The idea of natural law is that the two should coincide and that there is a divine source for the law. Taken to the extreme, the supporters of natural law would say that legal rules which did not conform with moral law should be ignored. In other words, if the legal rules of a country are in contrast to the moral laws, the legal rules should be disobeyed.

Positivists, on the other hand, hold that if legal rules have been enacted by the correct procedures, then those legal rules must be obeyed, even if they are not liked and are in conflict with morality.

2.6 Law and justice

Justice is truth in action

Benjamin Disraeli 1804-1881

It is often said that the law provides justice, yet this is not always so. Justice is probable the ultimate goal towards which the law should strive, but it is unlikely that law will ever produce ‘justice’ in every case.

First there is the problem of what is meant by ‘justice’. The difficulty of defining justice was commented on by Lord Wright, who said: ‘the guiding principle of a judge in deciding cases is to do justice; that is justice according to the law, but still justice. I have not found any satisfactory definition of justice … what is just in a particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man’.

In some situations people’s concept of what is justice may not be the same. Justice can be seen as applying the rules in the same way to all people, but even this may lead to perceived injustices – indeed rigid application of rules may actually produce injustice.

2.7 Rights and duties

All human beings are born free and equal

in dignity and rights.

Universal Declaration of Human Rights

The law gives rights to individuals and methods of enforcing those rights. Quite often the law is involved in a balancing act, trying to ensure that one person’s rights do not affect another person’s rights. In order to keep the balance the law also imposes duties on people.

This is more easily understood by looking at examples. In the law of contract, where one person buys a digital television from a shop each party will have rights and duties under this contract. For example, the shop has the right to be paid the agreed price for the TV, while the buyer has the right to have a set which is in working order.

The idea of rights and duties can also be seen clearly in employment law. An employer has a duty to pay wages to the employee, while the employee has the right to sue for any wages which are owed. An employee has a duty to obey reasonable lawful orders while and employer has a right to expect this and may be able to dismiss the employee if there is a serious breach. An employer has a duty to provide a safe system of work for all employees, while an employee has the right to claim compensation if he is injured because the employer has broken this duty.

Even where there is no contract or agreement between the parties, the law can impose rights and duties on people. An example of this is the right to use one’s own land (this includes a house or a flat) as one wants to. The law recognizes that people have the right to enjoy the use of their own property, but this right is balanced by the right of other land users to enjoy the use of their properties. So the tort of nuisance allows a claim to be made if one’s enjoyment of land is affected by too much noise, smoke, smells or other nuisances coming from another person’s land.

Even in the criminal law this idea of rights and duties can be seen. The criminal law imposes a duty on all citizens to obey the law or face possible punishment. This duty is imposed to protect other citizens or society as a whole. In this way the law upholds the rights of people not to be assaulted or to have their possessions stolen or whatever else the particular crime involves.

WORDS AND PHRASES YOU NEED TO KNOW

1. morality n (conformity with recognized rules of correct conduct)

moral adj a moral code n

2. rights n (individual liberties in a constitutional sense)

3. duties n (obligation of one person to another) break one’s duty/breach of a duty

4. adultery n (voluntary sexual intercourse between a married person and someone other than that person’s spouse)

5. rule (+on) v (to make an official decision about something, especially a legal problem) rule that …

6. sanction n (a consequence of punishment for violation of accepted norms of social conduct, which may be of two kinds: those that redress civil injuries (civil sanctions) and those that punish crimes (penal sanctions).

6. legislation n (the power to make laws)

7. decriminalize v /decriminalization n (process of legalizing an illegal act)

8. excommunicate v (expulse from religious society or community) excommunication n

9. adjudication n (the legal process of resolving a dispute – judgment)

10. rely on (+for) v (depend on sb/sth to do what you need or expect them to do; to depend on sth in order to continue to live or exist)

11. conform with v (obey a rule, a law)

12. enact v (make into law by authoritative act)

13. judge n (a public official who has the power to decide questions brought before a court of law).

14. employer n ( a person, company, or organization that employs people)

employee n ( a person who is paid to work for someone else)

employment n (the condition of having a paid job)

15. assault v (to attack someone in a violent way)

16. dismiss v (remove from a job)

Reading notes:

reasonable man – разумный человек, который оценил бы факты дела, окажись он на месте нарушителя в момент совершения тех действий, в которых его обвиняют; гипотетический стандарт внимательности и поведения, который применяется присяжными заседателями по делам о неосторожных преступлениях и деликтах и зависящий от конкретных обстоятельств.

euthanasia (mercy killing)

In the US and the UK the euthanasia is illegal, but many people approve of it.

natural law (a physical law of nature ‘gravitation is a natural law’)

positivism (the doctrine that all true knowledge is derived from observable phenomena, rather than speculation or reasoning)

Exercise 1. Read the following sentences, notice carefully the active words in bold, and translate the sentences into Russian.

Morality

1. Morality is what is right and wrong according to a set of values or beliefs governing a group’s behaviour.

2. Morality is not fixed and will vary from one group/society to another. Moral values may also change over time.

3. Often morality is based on religious ideas: the Bible teachings provide a moral code for Christian communities and the teaching in the Koran for Muslims.

Right

1. Absolute right is a right that belongs to every human being, such as the right of personal liberty.

2. Local customs is the term used where a person claims that he is entitled to some local right, such as a right to use land in a particular way.

3. The idea of rights and duties can also be seen clearly in employment law.

Duty

1. In tax law, a duty is a levy (tax) on imports and exports.

2. It’s the duty of a lawyer to act in the best interests of his client.

3. An employer has a duty to provide a safe system of work for all employees, while an employee has the right to claim compensation if he is injured because the employer has broken this duty.

Adultery

1. Adultery is variously defined and punished in some state statutes, but it is seldom prosecuted.

2. Although it is not a crime to commit adultery in either the US or the UK, many people believe it is morally wrong.

3. One example is adultery: this is against the moral code for both Christians and Muslims but is not considered a crime in Christian countries: however, in some Muslim countries (though not all) it is against the criminal law.

Rule (+on)

1.The Supreme Court has yet to rule on the case.

2. It is up to the court to rule on this matter.

3. Breaches of law will be ruled on by a formal legal system.

Sanction

1. The minister can only act in this matter with the sanction of Parliament.

2. The ultimate sanction is to suspend troublemakers from the debate.

3. There are also differences between law and morality in the way the two develop and the sanctions imposed.

Legislation

1. The government will introduce legislation to restrict the sale of firearms.

2. Legislation is needed to stop the spread of computer pornography.

3. Law can be altered deliberately by legislation.

Decriminalize/decriminalization

1. Many doctors seek the decriminalization of euthanasia.

2. Law can be altered deliberately by legislation: this means that behaviour which was against the law can be ‘decriminalized’ overnight. Equally, behaviour which was lawful can be declared unlawful.

Excommunicate /excommunication

1. The church threatened them with excommunication.

2. Morality is voluntary with consequences, but generally carrying no official sanction (though some religions may ‘excommunicate’).

Rely on (+for)

1. Many people now rely on the Internet for news.

2. For its income, the company relies heavily on only a few contracts.

3. Morality relies for it effectiveness on the individual’s sense of shame or guilt.

Adjudication

1. The matter was brought up for adjudication.

2. The owner can appeal to the court to adjudicate on the matter.

3. Breaches of morality are not usually subject to formal adjudication.

Conform with/to

1. You must either conform to the rules or leave the school.

2. Students may by expelled for refusing to conform to school rules.

3. Taken to the extreme, the supporters of natural law would say that legal rules which did not conform with moral law should be ignored.

Enact

1. Several bills were enacted at the end of this session of Parliament.

2. Congress refused to enact the bill.

3. Positivists, on the other hand, hold that if legal rules have been enacted by the correct procedures, then those legal rules must be obeyed, even if they are not liked and are in conflict with morality.

Judge

1. The judge sentenced her to 12 months’ imprisonment.

2. The strict Judge cannot be overcome, for He is omnipotent. (Pusey) — Нельзя побороть Судью, так как Он всемогущ.

3. The guiding principle of a judge in deciding cases is to do justice; that is justice according to the law, but still justice.

Employer/employee/employment

1. The number of people in employment (=who have jobs) has fallen.

2. The company has over 50 employees.

3. An employee has a duty to obey reasonable lawful orders while and employer has a right to expect this and may be able to dismiss the employee if there is a serious breach.

Assault

1. She was too shaken after being assaulted to report the incident to the police.

2. The minister was assaulted by a barrage of abuse from the angry strikers.

3. This duty is imposed to protect other citizens or society as a whole. In this way the law upholds the rights of people not to be assaulted or to have their possessions stolen or whatever else the particular crime involves.

Dismiss

1. If you are late again, you’ll be dismissed (from your job).

2. Employees can be dismissed for sending obscene emails.

3. An employee has a duty to obey reasonable lawful orders while and employer has a right to expect this and may be able to dismiss the employee if there is a serious breach.

Exercise 2. Fill the spaces in the following sentences with a suitable expression from Exercise 1

1. Western nations took economic … against imposed tough sanctions on the rebel regime.

2. Law and … usually overlap on major issues, but may differ on other matters, but in complex societies, … and law are never likely to be co-extensive.

c. Congress refused to … the bill.

d. … … also say that you have the option of initiating a civil lawsuit against your neighbour.

e. He was found guilty of indecently … a student.

f. In the United States federal … are appointed by the President, with the consent of the Senate.

g . The car industry is one of our biggest … .

h. The judge … that he should be released.

i. I feel it’s my … to help them.

j. You’d be quite within your … (=not going beyond your just claims) to refuse to work on Sundays.

k. They have to … … the river for their water.

Exercise 3. Find in the text English equivalents for the following Russian words and expressions.

моральное состояние, законодательство, нарушение супружеской верности, уголовная санкция, отлучить от церкви, полагаться на, решение суда, вводить закон, нарушить свой долг, неудобство, справедливость, исключить из числа уголовно-наказуемых, нападение, нравственные нормы, без посторонней помощи, неприкосновенность, согласовываться, естественное право, несправедливость, права и обязанности, контрактное право, налагать обязанности, уволить, заявлять претензию,

Exercise 4. Translate the following sentences into English.

1. Нормы права и морали могут совпадать по своему содержанию, но это не одно и то же. Требования нравственности не обязательно обеспечиваются государственным принуждением в виде санкций законно, и в этом главное отличие норм права от норм морали.

2. В таком случае возникает вопрос: почему же большинство людей стремятся к соблюдению требований морали.

3. Конечно, вопрос, что морально, а что нет, каждый решает для себя сам.

4. Широко распространены утверждения о том, что преступления, посягающие на личность и собственность, задевают всех и каждого, поэтому общество не может не объявлять их вне закона.

5. Традиционно большая часть английского права и судебных решений связана с охраной права собственности.

6. Термин “справедливость” в широком смысле слова употребляется как эквивалент нравственности и добродетели.

7. Наверное, каждый согласится, что назначение права состоит в том, чтобы обеспечить достижение прав и справедливостей.