Oliver Wendell HolmesView On The Relationship Between The Law And Morality

Based on the nature of the law outlined by Holmes, one can conclude that Holmes did not believe that a writing must be moral in order to constitute a law. As we have seen, the law is nothing more than a mechanism of prediction (Holmes, 184). According to this definition, a writing does not have to be grounded in morality in order to be considered a law, but rather just has to play a role in this prediction mechanism. In order to be considered a law, a writing must be a prediction of how state force will be used in the future or a past legal decision which could help make more predictions about how state force will be used. This leaves morality out of the necessary conditions of a writing to be considered a law. Holmes goes as far as to say that moral language confuses the distinction between morality and law (183). Furthermore, he says that he “often doubt[s] [whether] it would not be a gain if every word of moral significance could be banished from the law altogether” (Holmes, 185). This is in spite of Holmes noting that the law “tends to make good citizens and [morally] good men” (183). Also contrary to the hard line Holmes draws between morality and law, Holmes states that the law shows us the history and progression of morality in humans (183). These two facts show that

Jurisprudence explores what would be the simplest manifestation of law so as to create a civil society society where both individual liberty and normative goals are practiced. Should the the aim of law be primarily centered on the protection of individual liberty or, instead, the normative goals geared toward the benefit of of civil society? The laws in any society ought to not be centered on normative goals it ought to conjointly defend individual liberty.

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

However, Shelby neglects the inherent intertwining of moral and civic obligations in his determination that some crimes are justified and permissible. Since law is a set of rules determined by the entirety of society, it reflects the moral code and ethos that the particular society subscribes to. Consequently, each society, as well as its members, hold varying perspectives of morality. An action that is considered by one individual as a civic obligation can also be construed as a moral obligation

This reading presents questions around what role the law has, or should have, in defining religion. In the case of Sasnett v Sullivan, it is shown that in the legal setting, people feel as though they need to have a set definition of religion and its prescribed practices. This idea is significant, as we need to ask whether it is right for the law to have any part in determining religion, or whether it should be up to individuals.

St. Thomas Aquinas argues that an “an unjust law is no law at all.” (Aquinas in Dimock, ed., 2002, p.19) However, Aquinas also acknowledges that a human lawgiver may promulgate a command that has the form of law, and is enforced like a law, yet is unjust. This observation leads to the realization that these are two inconsistent claims. Yet Aquinas believes that these inconstancies can be reconciled. In Aquinas’ view an unjust law is not a law but yet is also able to be issued as law and imposed as law.

However, to critique Holmes’s stand, one may say that a law needs to be uniform so

Wonderful, short, summary of the views applicable to this case, and the defense for the view that you hold most. However, I believe that there is more to the Christian-principle based view of ethics, than what you give credit for. According to Arthur F. Holmes’ book, Ethics: Approaching Moral Decisions, one would find that the Christian view holds four tenants, or ideas, to shape the understanding of ethics, in which these views are: cases, area rules (moral rules), principles, bases (theological and philosophical). Thereby, one must go through these four sets of criteria to figure out if an action is right or if it is wrong. Following this line of logic, and if one were to look in the Bible for the answers, one would find torture is not right.

In the United States of America laws exist that govern business transactions to facilitate taxation, encourage fair competition, protect intellectual property, govern how employees & employers interact, & to protect the environment. Law, can generally be defined as system of rules enforced by the government through the use of statues, decrees, regulations, contracts, and the US constitution in order to impact behavior. A good law is one that allows individual rights to extend as far as possible without impact negatively another person. Likewise, a good law is one that does not violate any person’s basic human rights. Specifically this essay will discuss how two Jesuit values can support law, and examples of poor law that aligns with said values. The intent is to show pragmatic examples of law that is living up to the previous expectations set of law and those that do not.

The contrast between Natural Law and Legal Positivism is a necessary starting point for those who wish to understand the relationship between law and morality, and the most varied manners in which it influences society to this day. When it comes to analyzing which theory offers the most well-rounded idea of law, one can argue that Legal Positivism provides the best definition of what law is at its essence. However, because Legal Positivism came to exist as a critique to what was proposed by Natural Law theorists, it is significant that both are explored in depth as means to support such argument.

To begin with, Oliver Wendell Holmes’ main thesis was how when someone is studying law, they are not only studying a profession, but other subjects that tie into it as well. He defended his case fairly well. He spent a lot of time illustrating how his ideas were correct and listed examples of different subjects that fall into those certain categories.

In Hart’s eyes, though there may be a congruence between law and morality, it is by no means a necessary connection. (Hart, DATE)

There has been a long drawn out debate on whether CSR should be catered for by law or one that should be left to individuals and organisations morality. Law, a coercive order, seeks to bring about a specific mode of human conduct by force, whereas morality which is a persuasive system appeals to the conscience of the individual required. A rule is a rule of morality if by common practice of the community, it applies only to the conscience of the addressee for ultimate compliance, but a rule is a rule of law if by the common practice of the community it will eventually be enforced by a power external to the addressee, i.e. the state or community. The extent to which law can be used to enforce morals has been the subject of expression in some decided cases. In England, Lord Denning in Shaw v. D.P.P. (1962) A.C P.220 advocated the view that the society reserves the right to use criminal law to preserve morality in the same way as the society uses criminal law to preserve anything it considers essential for its survival. Prof Hart in Knuller v. D.P.P. (1973) A.C. P.435, on his part suggested that that it was wrongful to enforce morality through the criminal law without first ensuring that failure to do so will endanger the social fabrics. Notwithstanding the divergent views, both writers agree that moral values are very important to the society and that there is need for law to uphold some moral position

“Law would not be really imperative, we know, unless behind the sword of the magistrate, the bulk of mankind felt the weight of social obligation, the irresistible burden of custom, of immemorial tradition, and the like, a social, and even a religious sanctity."

Dworkin suggested that the law was imbued with specific attributes of morality. This was also known as the laws integrity. Dworkin’s aim was to explain how it was people’s duties to obey the laws, which is a moral duty, and the states hold the monopoly of the power to enforce the laws, rests on the laws integrity. However, for this the effectively work,