Challenging the Law – Different Roles of Morales Essay (Critical Writing)

The legitimacy of positive law versus natural law

The comprehensive definition of natural law is a system of ethical and fair principles that people deem universally acceptable, are intrinsic in human nature, and discovered through human natural intelligence (Finnis, 2011). In the context of civil rights, natural law is a measure of right demeanor not defined by humans but essentially, commonly deemed acceptable. It governs the participation of members of civil society from their time of conception to full maturity (Carper, McKinsley & West, 2011). Positive law is the written law designed for a particular society at a definite epoch. These are laws that administrate people and their leaders in a given society. Philosophical consideration of positive law portrays it as a law, fully defined by its existence as a man-made law (Carper, McKinsley & West, 2011). Practical examples include the constitution, various acts, and published judicial decisions.

In his speech, Martin Luther King Jr. notes that in spite of the “emancipation of proclamation signed by Lincoln) in the past century, which liberated the black man from the clutches of slavery, these social injustices still abound (Luther, 1963). According to Luther, the black man still suffered from these vices. He was the subject of abject poverty, racial prejudice, and segregation. In light of the description of natural law, it is unnatural for a man to suffer at the hands of another (Carper, McKinsley & West, 2011). Nature demands the equivalent conduct of all men regardless of their color or background. However, Martin describes a contravention of this proposition (Luther, 1963). Additionally, Martin Luther talks of these contraventions in the light of their establishment in the emancipation proclamation. This is a legal document and qualifies as positive law. According to Carper, McKinsley & West (2011), positive law has its basis on the natural law. In light of Martin’s speech, there is an apparent marriage of ideas between these two laws on the subject of human freedom and contentment. It is evident that the legitimacy of positive law has its institution in the natural law’s definition of the given subject.

In Governor George Wallace’s speech, there is an apparent sharp conflict between the two professed laws. The governor talks of a Tyrant in Washington who signs into law, provisions that the congress had refused to pass,s and apparent omission of the phrase “in God we trust” from some bills. The governor sees an apparent contravention of the protocol in signing bills into laws coupled with the use of excessive force in quelling rioters at a university as an infringement of basic human freedoms. According to Finnis (2011), the basis of any law is to guarantee the ultimate gladness of the served community. Additionally, according to the founding fathers of the nation; the constitution was a fusion of natural law and positive law. Governor Wallace’s speech strongly defends this stand and is not cognizant of any imminent changes to the constitution. The events mentioned by the governor point to massive contravention of this fact (Wallace, 1963). Finnis (2011) points out that, in the application of positive law, the definition of justice is in terms of the provisions of the said propositions and is not cognizant of any objecting scheme in the natural law. In light of this, it is evident that the legitimacy of the positive law is undisputed irrespective of its lack of influential basis in natural law.

“Subject’s duty to obey the law”

Obligation to obey a law is a philosophy that argues the essence of obedience a law. According to Finnis (2011), there is a moral and a political obligation to the obedience of the law. In the past, there have risen countless critics of ethical commitment to obeying positive law. Being a written law that seeks justice with no cognizance of the moral implication of the actions it takes, it lacks conviction for moral adherence. However, certain laws like those that caution against murder are morally acceptable, (Carper, McKinsley & West, 2011). Finnis (2011) suggests that the political compulsion of law anticipates all citizens to obey the law irrespective of their thoughts about the said provision. That the unanimous acceptance of a law by a community makes them ethically and legally obliged to the said provisions.

In his speech, Martin tells the people not to whither until the government addressed their sufferings. He encourages civil riots in all the states and major cities of the nation insisting that it was not an end but a beginning, a sign of things yet to come. However, he is cautious to remind the people not to turn to violence. He points at the significance of not letting the civil rift boil into bloodshed and cautioning them against turning it into an unlawful act. In view of this, Martin demonstrated his unyielding obligation to the law. He cautions against the use of militancy to cause havoc terming it unlawful and an act that could paint badly their destined cause.

Concurrently, Governor Wallace insists that they will reject the suggested changes that apparently would impinge on the freedoms and rights of citizens. He notes the hat refusal of such laws is in line with the propositions of the founding fathers. According to him, no government has bestowed the obligation to give freedom or limit an individual’s freedoms (Wallace, 1963). He believes that the initial figures like Thomas Jefferson stated vividly that God who provides the gift of life equally ensured freedom. His readiness to defend the ideas of the founding fathers is loud and understandable. He notes that for people to enjoy the provisions of the great dream, they must ready themselves to defend them forcefully. From this speech, it is apparent that the moral dislike of law has the potential to cause political rifts. This is evident when he claims that the state of Alabama will resolve the results of the pending elections. Additionally, the obligation to laws that profess both moral and positive function is evident.

How law should or should not be used to promote the common good

Carper, McKinsley & West (2011) describes common good as a general condition that offers equal opportunities to every member of a given society. Finnis (2011) propose that common good is the totality of all aspects of social life that affords members of a given community essential completion. It is through the “bill of rights” and acts that people’s well-being Martin’s speech is about the social and racial injustices that have afflicted the black communities. He talks of a promissory note given by the founding fathers. This note is synonymous with the common good envisioned by the Negro. He notes that the bank of justice is not bankrupt nor are vaults of chances empty. The chief obligation of any law is to ensure the happiness of the subjects, (Finnis, 2011). From the speech, it is evident that Martin is aware of the capacity of the law to provide for the anguishing Negro. This evidently shows the belief that law can provide for the good of the citizens.

Reportedly, as a governor, the first rule Wallace instituted was the illegalization of liquor business. This is evident in his speech when he declares that the liquor agents were no longer welcomed in Alabama. The aim of this rule is to divert the huge spending on alcohol to education and care for the elderly. These services focus on attaining the common good of both the children and the elderly. Consequently, it shows the use of law to foster the common good of the people.

Harm to others principle as justification for his views

According to Carper, McKinsley & West (2011), a democratic society favors the majority while the minorities are compelled to adhere to the interests of the majority. This manipulates others thus useful in directing the cause of their actions. In his speech, Wallace declares that the spirit in which the nation’s founders established the nation was a Godly one. It rewarded excellence and punished malevolence, that there was an absolute reward for hard, and that objectivity, resourcefulness and, originality were admirable characteristics. Martin talks about the black minority suffering at the hands of white men who had failed to recognize their essential rights as Americans. In spite of the existence of such, provision of the laws of the land, the black man determinedly suffered from segregation.

The roles paternalism and autonomy should play in determining the aims of law

Finnis (2011) defines paternalism as the involvement of a government or authority or an individual with another in the absence of their free will. It is justified by the claim that victims interfered with will get protected from mischief. It in essence concerned with addressing the treatment of individuals whare en they irrational. They are policies and rules whose establishment is in the context of the affected individual being less exposed to harm. Paternalism requires the use of ethics while similarly considering underlying scientific and physical evidence on the issue. Governor Wallace thinks that the liquor agents’ business activities are not beneficial to the state of Alabama. This forms the basis for their expulsion from the state.

Martin thinks the law is one-sided when it comes to race. He points at certain paternalism and autonomy policies, which lead to the perceived segregation witnessed in American societies. The roles of paternalism and autonomy should play in determining the aim of the law is to protect the genuinely affected individuals from actions that are eventually destructive. These limit one or many people from enjoying their rights as stipulated in the laws.

The role morality should play in determining the aims of law

According to Finnis (2011), the law has fundamental functions in the establishment of the individual wellbeing. Rule of law is a significant ideal and should have moral benefits to all members of the society. Additionally, the reason behind the establishment, maintenance and law reformation has moralistic aspects that play major roles in reshaping the legal concepts. These virtuous deeds are acceptable and found in the principles of positivism. According to Martin, the law should not be selective in its applications. Governor Wallace insists that the rule of law has its basis in aspects that the society has over the years deemed moral (Wallace, 1963). That is the rule that ascertains the freedom of the people. It is evident from these propositions that for positive law to succeed, it must have its foundation in the morality preached by the natural law. While addressing the people, Luther points at the injustices arising from the implementation of the laws as stipulated by the founding fathers that had excellent intentions.

References

Carper, D. L., McKinsley. A. J & West, B. W. (2011). Understanding the law. New York, NY: Cengage learning.

Finnis, J. (2011). Philosophy of law: Collection of Essays. Oxford: Oxford University Press.

Luther, M. (1963). A speech by Dr. Martin Luther King, Jr., delivered 28 August 1963, at the Lincoln Memorial, Washington D.C. Web.

Wallace, G. (1964). Governor George Wallace’s January 14, 1963 inaugural Address. Web.