Laws6249 Legal Theory For Evolution Assessment Answers

Answer:

The passage of time and the destruction and construction of new civilizations and societies have gradually triggered the evolution of the legal aspects. In this respect it is noteworthy that the natural law tradition, which was once considered as the backbone of the legal approaches, has gradually lost its importance under the lights of the concerned evolution. Going through the writings of scholars, legal commentators, sociologists and historians it can become quite clear that the natural law tradition is outdated and no longer has a place in contemporary legal practice. There are certain reasons for claiming so, and such reasons should be interpreted from legal, political and social perspectives.

The natural law of theory define several theories where the natural law of justice has the morality which has its own perspective with more realism and corresponded with a mind- and convention-independent theory. According to Aquinas, the identification of moral theories has its rational nature which defines human nature with moral law.

It is noteworthy that the Natural Law Theory proposes that “as physical laws of nature exist, so do universal moral laws. These laws disclose themselves to us upon close examination of the world and the nature of humans.” But such a perspective on the universality of law has been challenged by both philosophers and scholars. It was Thomas Aquinas who did advocate the natural law theory as he believed that natural law is integral to the divine providence. Aquinas did equate eternal law with natural law as the creation of God. In this respect Aquinas’ view should be considered to be an echo of the Stoics who considered natural law as the infallible law because rationality can only be attained when the same is in harmony with the universe, and violence and vices are consequences of irrationality because they are not in harmony with universal laws. If such perspectives are considered then the relativity of morality or ethics has to be challenged. But this is not the case, and it has been observed that morality and ethics, just like conventions, are often relative and vary from society to society and from culture to culture. It is also a fact that Aquinas’ theory of natural law that advocates in favour of universality is based upon a mere theory which has not been considered pragmatic by modern legal professionals. It is due to this reason that the theory of natural law as proposed by Aquinas has been nullified by many legal practitioners and today, in the era of globalization and liberalization, in the context of evolution of the legal system, the natural law theory has become an outdated one which is on the verge of becoming obsolete.

Aquinas, in his natural law theory, has suggested that human laws, rules, and regulations must be replicas of the law prevailing in nature. And keeping parity with such belief Aquinas has argued that there are bound to be sets of moral laws that are universally applicable being the fact that they are the creations of God. In other words it can be said that Aquinas has claimed that the natural law is the embodiment of Godliness primarily due to the fact that natural law condemns vices, sins, and evils just as God despises the devil. Moreover, Aquinas’ natural law theory is a transaction point of morality and legality. In this respect one must take a note of the fact that, Aquinas’ natural law speaks of a universal maxim – one must always do good and must always refrain from doing evil. This universality has been based on Aquinas’ belief that “all human actions are governed by a general principle or precept that is foundational to and necessary for all practical reason.” Aquinas has argued that such moral determinations cannot be ever ignored and defied primarily because it is God’s creation and hence, unchallengeable. So, it can be seen that in the sphere of Aquinas’ theory there is no place for moral relativity or ethical relativity. Whatever law is natural law is universally applicable from the moral perspective and hence, every human being should be abided by law irrespective of his social and cultural origin.

But Aquinas’ natural law theory should be challenged from both the ethical/moral and legal perspectives. If analyzed from David Hume’s perspective one can see that the natural law theory of Aquinas is quite obviously refutable. Hume has suggested that, one cannot “logically derive a moral imperative or value judgment simply by observing facts of nature. If the natural law theorist has to be believed then issues like pre-marital sex or gay marriage would become criminal offences. But such should not be considered because; human natural instinct or natural tendency is seemingly irreconcilable with ethical or moral behaviours. Also, if judged from the scientific perspective the theory of natural law can be refuted.

Modern science believes in the cause-effect relationship and that is the reason why, modern science, refuting the theory of natural law (in the legal context) states morals and values are inversions of the human mind, and hence, they are not absolute but relative.

Aquinas also has stated that there is eternal law which is the outcome of God’s plan for the universe and then there is the derivative of such eternal law in the form of natural law that human beings can discover by using both faith and reason, and ultimately there is the divine law of the scriptures. Aquinas has stated that natural law is derived from eternal law and human law has been formulated to enforce the derived natural law which human beings often try not to abide by. But such a statement again seems fallacious. If the basic purpose of human law is to enforce the natural law then again the question of universal morality would come to surface. If the sole purpose of human law is to implement and enforce the natural law then for each genre of crime there would have been a universal punishment. But this is not the truth as such imposition is neither possible nor practicable. For an instance, there are countries where a rapist is sentenced with death penalty, but there are myriads of nations that have abolished death penalty and in those nations the rapist also are not put to death sentence. If the purpose of human law would have been universal, and not relative, then in each and every corner of the world each and every rapist, brought to trial, would have received death sentence. But as this is not the case, the argument in favour of the imposition of natural law should be refuted.

Moreover, substantive natural law theory in the context of jurisprudence must be replaced and it should be replaced by a different genre of natural law that has in it some principles of relativity. It must be taken into account that natural law, as cited by Aquinas and his successors, is infused with certain elements but is devoid of some other. For an instance, if substantive natural law, in the legal context, should be considered as a legal theory constituted of generality, non-contradiction, and possibility of compliance, then it must be considered to be devoid of non-retroactivity, constancy and congruency (between declared law and official action).

In this respect one must take into account the fact that Fuller has espoused that there must be a procedural natural law approach rather than a substantive natural law approach. It is quite important to note to support the demand that; “The ‘internal morality of law’ is essentially a ‘morality of aspiration’. Nor does it claim to accomplish any substantive ends, apart from the excellence of the law itself”. Furthermore, it must be taken into account that though the advocates of natural law theory may equate it to the argument of social cohesion, but this equation has been challenged by Professor Hart who insists that “a society does not require a shared morality; pluralistic, multicultural societies may contain a variety of moral views. Nor, even if there is a shared morality, is it obvious that its protection is essential to the survival of society. In respect of the first assertion, it does seem farfetched to claim that a society’s foundation is unable to withstand the challenge of a competing ideology or morality.” Refuting the concept of natural law (ingrained with universal morality) it can be argued that even though in Islam consumption of alcohol is prohibited, the consumption of alcohol is not discarded in the American society in which there are myriads of Muslims residing. This means that law and morality both are relative and they cannot be imposed universally. Hence, the theory of natural law is refutable.

Furthermore, if the theory of natural law is to be considered supreme in the sphere of legislation and judgment then that would mean establishing on the chair of judgment a biased individuals guided by unchangeable universal moralities. It must be noted that legal system adhering to natural law and accepting its domination should be deemed archaic and ancient, and not modern. The application of natural law is only going to make the judge a slave to moral doctrines. In this respect Fuller has stated that, a judge should not only be provided with a legal sovereignty; rather he/she should be equipped with moral sovereignty. Quite interestingly then, “The value of Fuller’s position lies therefore not in the linguistic claims about the nature of law, but in its recognition of the moral sovereignty of the judge. His argument is of course part of a general unease about the dangers of what is often perceived to be the positivist rejection of values, or, at least, the potential this approach has for the triumph of the will over virtue.

One must also take into account the fact that a judge should be infused with public morality, and if this is to be accepted then there is nothing wrong in accepting the universality of natural law and morality. But to make such argument would be to challenge the very establishment of modern day law and justice system. It is a fact that a judge must abide by public morality sacrificing his/her individual morality for the sake to unbiased justice. But it is also a fact that in the body of public morality lies the soul of individual morality of the judge who has grown seeing and adapting to relative social norms, mores, and conventions. For an instance, if an American judge is replaced by a Saudi Arabian judge in the context of ruling against alcoholism, his decision might not be the right one as it would be wrongly based on a public and individual morality shaped by the Islamic society and culture. Hence, it must be admitted that though public morality must be there within the justice system the concept of relativity of law and the importance of individual morality should never be underestimated. It is also noteworthy that it is not the natural law theory but community accountability and responsibility that must play a significant role in shaping the public morality on the basis of which a judgment can be given.

So, is it quite justified to term natural law to be an obsolete one having no influence rendered in the past or at present? This question should be deemed to be critical and complex. This is primarily because; there are certain elements in natural law which did contribute to the ushering of positive changes in many societies. In this respect it would be erroneous to justify natural law from the conservative perspective of Aquinas. In this respect one must take into account the fact that, “the principles of natural law have been used to justify revolutions – especially the American and French – on the ground that the law infringed individuals’ natural fights. Thus in American the revolution against British colonial rule was based on an appeal to the natural rights of all Americans, in the lofty words of the Declaration of Independence of 1776, to ‘life, liberty and the pursuit of happiness’.” But an advocate of natural law should not be given scope to justify its application from the perspective of evaluating its application to revolutions. Refuting such advocate one must convey the fact that law is relative and legal jurisprudence must be pragmatic. If natural right related laws were brought forward to ignite the fire of revolutions then it must be also noted that the period demanded for such legal rights’ application. The same is not going to be applied on a modern democratic society of today, and this proves that natural law is obsolete as it defies relativity.

In conclusion, going through the writings of scholars, legal commentators, sociologists and historians it can become quite clear that the natural law tradition is outdated and no longer has a place in contemporary legal practice. There are certain reasons for claiming so, and such reasons should be interpreted from legal, political and social perspectives. Primarily, it must be noted that morality and ethics, just like conventions, are often relative and vary from society to society and from culture to culture. It is also a fact that Aquinas’ theory of natural law that advocates in favour of universality is based upon a mere theory which has not been considered pragmatic by modern legal professionals. It is due to this reason that the theory of natural law as proposed by Aquinas has been nullified by many legal practitioners and today, in the era of globalization and liberalization, in the context of evolution of the legal system, the natural law theory has become an outdated one which is on the verge of becoming obsolete. Moreover, Aquinas’ natural law theory should be challenged from both the ethical/moral and legal perspectives. If analyzed from David Hume’s perspective one can see that the natural law theory of Aquinas is quite obviously refutable. Also, if judged from the scientific perspective the theory of natural law can be refuted. Modern science believes in the cause-effect relationship and that is the reason why, modern science, refuting the theory of natural law (in the legal context) states morals and values are inversions of the human mind, and hence, they are not absolute but relative. Furthermore, substantive natural law theory in the context of jurisprudence must be replaced and it should be replaced by a different genre of natural law that has in it some principles of relativity. It must be taken into account that natural law, as cited by Aquinas and his successors, is infused with certain elements but is devoid of some other. For an instance, if substantive natural law, in the legal context, should be considered as a legal theory constituted of generality, non-contradiction, and possibility of compliance, then it must be considered to be devoid of non-retroactivity, constancy and congruency (between declared law and official action). Finally, refuting advocates of natural law one must convey the fact that law is relative and legal jurisprudence must be pragmatic. If natural right related laws were brought forward to ignite the fire of revolutions then it must be also noted that the period demanded for such legal rights’ application. The same is not going to be applied on a modern democratic society of today, and this proves that natural law is obsolete as it defies relativity.

The Animal rights idea was introduced due to the non-human activities towards the animals by the human. Human being always possessed the life and not considers their natural behaviours which arises the rights of animals. They are also requiring more values and protection according to their living in the nature. When some human behave with non-human activity, in other hand some people think that the animals are not recognize as a property or they used as research subjects, entertainment or the beast of burden.

Here, the question is arising that the separate treatment of animals with irrational behaviour. In several countries the animal law and rights has been introduced for the protection of the animals[32]. Human must have duties to provide proper freedom where they are not use as a beast of burden. The British philosopher John Locke has argued that the animals have feelings and they are not used for the cruelty by the human. Human has no right to make any damages to them[33]. Due to the bad humankind, animals are being suffered the non-human treatments. In other hand Jeremy Bentham has stated that the human and animals both have equal significance regarding the existence in the nature. Therefore, when humans are living their free life, then it is the duty of them to let the animals to live freely.  

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