...theory of law based on pyramidical structure of hierarchy norms is sought validity from it . The jurist and legal philosopher Hans Kelsen coined this term to determine and gives validity to other norms derived from it . The validity of the Grundnorm can’t depend on any other norm it must be presupposed . As Kelson says that , “ by formulating the Grundnorm , we don’t introduce into the science of law any new method . We merely make explicit what all jurists, mostly unconsciously assume when they consider positive law as a system of valid norms and not only as a complex of facts and at the same time repudiate any natural law from which positive law would receive its validity . That the Grundnorm really exist in the juristic consciousness is the result of a simple analysis of actual juristic state means. The Grundnorm is the answer to the question how and that means under what condition – are these juristic statements concerning legal norms, legal duties , legal rights and so on , possible .”(1) 1. Raymond Wacks : Understanding Jurisprudence In other hand it seems that the validity of this norm rests not on another norm or rule of law , but is assumed for the purpose of purity . It is therefore a hypothesis about the reality behind the law but explicitly as a methodological maxim , a norm of method which is ontologically neutral . Kelson brings this term Grundnorm or basic norm for answering a question of legal theory , why is law obeyed ...
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...century’s jurisprudence field was ruled by the positivist school of thought - unseating the natural law theories of the time, with its clear separation of law and morality coupled with empirical methods. The 20th century however, saw a huge of interest again in the natural law theory. American legal philosopher, Lon Fuller who was “an outsider within the intellectual climate of mid-twentieth century legal philosophy” today, stands as “the leading natural lawyer” at the forefront of it. However, despite seeming to conform to natural law thinkers, Nicholson claims that Fuller’s “natural law terminology should not be allowed to obscure his originality”. He eschews the Christian doctrines normally present in natural law, and instead presents a more procedural approach to marry the ideas of morality and law. This essay will explore his claims - namely the “internal morality of law”, its moral authority and also further the argument that posits the inherent intertwine of law and morality is correct and necessary as the first line of defence against evil regimes and as a check and balance to ensure government accountability. Fuller’s Internal Morality of Law For context, it’s worth noting what Fuller believes as the purpose of law - that it is a purposive “enterprise of subjecting human conduct to the governance of rules”. Fuller begins by introducing two types of moralities - the morality of duty and aspiration. He describes the two using “an imaginary scale” that “starts at the bottom...
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...CLASSIFICATION OF LAW Objectives of the course:- • Enable the students to think in a more abstract or general fashion than is generally achieved in the study of specific areas of law and demonstrate the same in answering questions. • Enable the student to develop the willingness to question and think independently and to find out more in the study of law. • Discuss critically the definition of law • Explain the various scholars position on their attempt to define the meaning of law • Distinguish law from morality; justice • Explain the various classification of laws • Discuss the functions of law in society Nature of law Meanings given to the word law The word law has various meaning which are used by different classes & types of people. Examples • Regulations that help in the smooth and proper running of institutions such as colleges and Universities could be referred to as laws/ rules. • There are laws of science, which are basis formulas and set standards to be applied in the field of different sciences. • There is also the layman’s idea of what law is. He will have a rough idea of where the law came from - the politicians (which are his description of parliament) and the judges. He knows that if he steals and he is caught he will be punished. He also knows that if a drunk driver knocks him down and injures him, he will have the law on his side. However, he will know nothing of the branches of law (law of tort and criminal law) which gives him a remedy in law. He will...
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...affairs. I would not forget to remember Mr. ANURAG PANDEY , my senior who gave constructive ideas for the project and helped me with the presentation part of the project. I am thankful to and fortunate enough to get constant encouragement, support and guidance from my parents who helped me in successfully completing our project work. Also, I would like to extend our sincere regards to the staff of department of library for their timely support. TABLE OF CONTENTS :CHAPTER – 1 : INTRDUCTION RIGHT TO FORM ASSOCIATION RIGHT OF ASSOCIATION AND GOVERNMENT EMPLOYEES RIGHT TO FORM ASSOCIATION AND ARMED FORCES REASONABLE RESTRICTION CHAPTER – 2 : GROUNDS ON WHICH RESTRICTION IS IMPOSED SOVEREIGNTY & INTEGRITY OF INDIA PUBLIC ORDER MORALITY CHAPTER – 3 : WHY RESONABLE RESTRICTION IS NEEDED CHAPTER – 4 : PROCEDURE FOR THE RESTRICTION CONCLUSION BIBLIOGRAPHY Introduction :- RIGHT TO FORM ASSOCIATION :- It is a fundamental Right given in the Constitution Of India under Article 19 (1)(c) , It proclaims that all citizens shall have the freedom to form...
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...same as legality. legal positivism affirms positive law as the basis for decision making when a business manager is confronted with a moral problem. Rejects the view that law can be measured against any objective universal true moral standard. the question as to whether a low is moral or immoral can not ethically determined. Law itself supplies the standard for morality which is an admittedly relative standard derived from the positive law prevailing at a particular time and place. the law certainly is more facile, apparent convenient standard to adopt. da low also possesses the advantage of being an enforceable norm, what is moral is determined by the examination of the law, by complying with the law. This simplifies moral matters. the law is too easy to embrace as normal emblem a person can refute an accusation of morality merely by demonstrating that no law was broken. they realized that life without rules is not a human life. they seek to create some type of entity that can defend them from the injuries they inflict on one another. They enter into a mutual agreement or social contract , to appoint or elect a sovereign or assembly with absolute authority to lay down the law and to enforce it. morality therefore depends on law assuming that the law is enforced effectively, rules achieve validity only when a government official with the power to command and impose sanctions for non-compliance declares the rules as law. in this case of health c the Affordable Care Act...
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...moral aspects of his thinking. Second, I present an interpretation of the Kantian ethics, taking as my point of departure, the concept of the categorical imperative. Finally, I show how the categorical imperative is given a dialogical interpretation by Jürgen Habermas in his approach, usually referred to as discourse ethics. I argue that the dialogical approach taken by discourse ethics is more justifiable and therefore more usefuli. I The Synthesis of Rationalism and Empiricism The philosophy of Immanuel Kant (1724-1804) is in the main inspired by two different schools of thought. Classical rationalism and classical empiricism. The basic difference between classical rationalism and empiricism is that they have opposing views on questions concerning the prime sources of knowledge and the constitutive role of reason. Rationalism traditionally maintains that it is possible to obtain knowledge by reason alone, that everything is in...
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...Jr.‘ Natural Law Theory Comp. 102 Date: 6/5/2013 Paradoxically, Martin Luther King, Jr., “Letter from the Birmingham City Jail,” Initially uses classical natural law theory to define his actions, but immediately thereafter contradicts a fundamental tenet of this theory and relies on a “weaker” version of natural law. In doing so, King must attempt to formulate a theory which justifies his illegal actions in view of his moral obligation to obey the law. King’s failure to distinguish between legal obligations and moral obligations yields a logical paradox in his final formation of natural law theory. However, Kings theory need not be completely rejected if his argument is slightly modified to reject the moral obligation to obey laws. King initially uses classical natural law theory as his rational basis to defend his actions. This theory has two main point of views, the first being,” Moral Validity; is a logically necessary condition for legal validity an unjust or immoral law being no law at all” followed by, “The moral order is part of the natural order moral duties being in some sense “read off ” from essences of purpose fixed (perhaps by God) in nature.” According to this theory, morality law, but law that equals morality by definition. Thus for King to use this theory, two requirements are implicit. He must assert that an unjust law is not really a law, and he must provide a moral theory to distinguish just and unjust laws. King first quotes...
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...which the American government was granted possession of the property for. Considering his plea agreement referred to the forfeiture of his real estate, it would be implied that the seizing of the Caribou Way property was meant to satisfy his guilty plea, and since the judgment of the possession of the property wasn’t granted along with the sentencing of the accused, then the order of the events would show that he was subjected to double jeopardy once by the seizing of his property, and then again by the sentencing of 72 concurrent month terms for each count. Giving reason to believe that the seizing of the property didn’t satisfy the judgment placed by the court for any of the counts the accused was facing. 2. What was (were) the legal question(s) before the court? Can the forfeiture of real estate to the American government satisfy the crimes possibly committed by the accused? Are the concurrent terms for each count a reasonable punishment when taken into consideration the fact that the accused has already forfeited his real estate in relation to this case? Was the Caribou Way property proven to be directly...
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...What is not forbidden is compulsory. There are many labels that others use to describe a person such as me. Unlike religious labels, labels for non-religious persons are about what he/she does not believe in, or does not possess (such as in the word agnostic, meaning 'no knowledge’). Implicitly, the non-religious (non-theist) person is viewed as being in deficit.* Although I have personally used such terms to simplify social discourse, no such label adequately, or truthfully, describes what I do ‘believe in’. But these label issues are not the central point. The main point is that non-religious, or non-theistic, persons are implicitly viewed, by many of our more devout brethren, as morally deficient. For, to the religious person, morality issues from the expressed will of god, as documented in a given religion's holy book or books. Insofar as a religion presumes to embody god's will (as defined by...
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...LEGALISED IN INDIA? Sujoy Chatterjee Student, National Law University, Jodhpur I. INTRODUCTION: HISTORY OF S.377 Sir Fitz-James Stephen, in his treatise on the History of Criminal Law , has opined, “The Indian Penal Code may be described as the criminal law of England…to suit the circumstances of British India.” S.377 of The Indian Penal Code, which proscribes “Unnatural Offences”, is one such import of Victorian standards of morality as prevalent in Britain at that time. S.377, at the time of its introduction in India in 1861, was contrary to existing Indian law which did not treat sodomy as a crime. S.377 proscribes “carnal intercourse against the order of nature”. The marginal note refers to the acts proscribed as "unnatural offences", but this expression is not used in the text of S.377. The expression "carnal intercourse" is used in the text of the Section, as distinct from the expression "sexual intercourse", which appears in S.375 and S.497 of the Indian Penal Code. But the expression “carnal intercourse” itself is not defined, nor does S.377 provide any explanation or illustration as to what acts are proscribed. This was initially a source of great confusion as to what acts fall under the ambit of the term “carnal intercourse”. In Government v. Bapoji Bhatt it was held that the act of putting a penis in a boy’s mouth is not covered by S.377, since this provision is based on English sodomy law and hence requires that the act be “in that part where sodomy...
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...Introduction Ethics is the systematic study of the fundamental principles of morality. It is an attempt to explain moral principles. It is concerned with the question of right or wrong in human behavior. It explains how men ought to behave and why it is wrong or right to behave in a certain way. Ethics weighs human actions or inactions on a moral scale to determine whether the action is morally good or morally bad. Thomas Hobbes on ethics explained it as the science of “virtue and vice.”1 Morality and ethics cannot be divorced. Morality is the basis of ethics, the latter is the explicit reflection on, and the systematic study of the former (Joseph Omoregbe 1993 p.3)2. How then do we decide what is morally right? Is it based on universal laws or divine instructions? Are laws truly universal? If they are not, how then can the rightness or wrongness of culturally divergent societies be determined? Philosophers agree and disagree in varied proportions on answers to these questions. It is normal if you disagree too. For the purpose of this paper, an attempt will be made to look into the concept of ethical relativism, its importance and areas of deviation from ethical absolutism. History of Ethical Relativism Though moral relativism did not become a prominent topic in philosophy or elsewhere until the twentieth century, it has ancient origins. In the classical Greek world, both the historian Herodotus and the sophist Protagoras appeared to endorse some form of relativism. The early...
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...October 29, 2008 PHIL 3516 Professor R. Debes Natural Law Theory Defended One may pose the question; what is Natural Law Theory? To answer that question I would like to take a look at our book. Thomas Aquinas says this, “[Now] the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is happiness or beatitude…. Consequently, law must… concern itself mainly with the order that is in beatitude. Moreover, since every part is ordained to the whole as the imperfect to the perfect, and since one man is a part of the perfect community, law must… concern itself properly with the order directed to universal happiness. Therefore Aristotle mentions both happiness and the body politic, since he says that we call those legal matters just which are adapted to produce and preserve happiness and its parts for the body politic.” (Q90) He goes on to say, “Thus,… Law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community. The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally…. The promulgation that takes place in the present extends to future time by reason of the durability of written characters, by which means it is continually promulgated.” (Q90) Simplified we can take a few things from this excerpt such as that Natural Law is instilled in us by God, and directs towards a final end...
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...The three main factors that influence a researcher’s choice of method are practical, theoretical and ethical issues. These are considerations influencing the choice of topic, choice of research method and the conduct of research. Practical issues would include things like time and money whereas ethical issues would revolve around genuine morality and values. Theoretical issues are, as sociologists say, the most crucial issue of the research being viewed as it helps us picture a society and how we think it can be studied in an accurate and most truthful picture. The three factors coincide with each other and have impacts on each other as a whole. Sociological research involves confronting and resolving practical factors relating to the choice of topic and research method. Practical factors would include effects and situations like time and money, funding bodies, personal skills and characteristics, subject matter and research opportunities. Large scale research is expensive and beyond the means of most sociological researchers as well as publisher deadlines would mean time pressure would be enhanced and work would be less detailed. If the research is on large scale than more staff and employers would be required increasing the amount of money going into the research where as if it was on a small scale the money would be...
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...Morality & Ethics in Corporate World Inspired and infuriated in equal measure by this week’s Moral Maze (BBC Radio 4, 9 February 2011) on Multiculturalism — a fact that is indicative of just how good the programme is — I have been reflecting on two aspects of the discussion that were, to my way of thinking, conspicuous by their absence — a lack of clarity between ethical principles and their moral application, and our need to go beyond pluralism and cultural integration in the UK. The discussion reflected on the Prime Minister’s statement last week that “State Multiculturalism has failed…” because we, in the UK, have failed to provide a vision of society to which they want to belong.” The “they” in question referred to Muslim organisations in receipt of public funds, which, said the Prime Minister, do little to tackle extremism. “We have even tolerated these segregated communities behaving in ways, which run counter to our values.” A genuinely liberal country “believes in certain values and actively promotes them“, Mr Cameron said. “Freedom of speech, freedom of worship, democracy, the rule of law, equal rights, regardless of race, sex or sexuality. “It says to its citizens: This is what defines us as a society. To belong here is to believe in these things.” He said that under the “doctrine of state multiculturalism”, different cultures have been encouraged to live separate lives, and he argued that the UK needs a stronger national identity. The Moral Maze called...
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...“Is morality relative or are there objective moral truths?” Is Morality Subjective or Objective? Every day, we make decisions that affect our lives and others. Sometimes, those decisions are bigger than other times. Those decisions are sometimes made because the choice is to do something right or wrong. We say that a moral person will make the right decision and the immoral person will make the wrong decision. An example of this is that if I was raised in a culture that says killing is wrong. I am a Naga from Northeast India. Just over 100 years ago, we Nagas were headhunters. Killing was more than tolerated – it was expected. Men would raid other villages nearby and kill other men, bringing back heads. Even children’s heads were special trophies. This sounds very bad, even to me, but if I was born over 100 years ago, I would be okay with it. So is killing others right or wrong? Even in enlightened cultures, wars happen and people kill each other. These questions always come up when people talk about morality. In any debate, the arguments tend to take two extreme sides, which means there is not much middle ground left for the discussions. The slippery slope fallacy is often used to talk about morality. According to Richard Nordquist at about.com, the slippery slope fallacy is “A fallacy in which a course of action is objected to on the grounds that once taken it will lead to additional actions until some undesirable consequence results” (para. 1). In other words, we say something...
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