what is law and what can we really do with it?

As such, there is no single or correct answer to this question. In past no one really questioned lawmakers, law distributors, or the laws themselves. But of late, society has begun to question most legal activities as to their effectiveness and competence. The cause of these reviews has emerged by changing times, changing thoughts, understanding, beliefs, as well as the development of technology and other such new developments within societies.

There are 2 sources of law – parliament (legislation) and court (case) made law. These laws can be regarded as being purely formal, irrespective of whether they are good or bad.

Law can be ‘positivist’ in nature – meaning no judgement is made in regards to the quality of that law - implement it regardless if it is a good or bad. Such a theory does not look at the moral implications of the laws – it’s a amoral view of law. Natural law on the other hand, is the idea that ‘God’ makes laws. This theory originates as far back as early Greece and the ‘Gods’. The most complete account of natural law doctrine can be found by Aquinas St. Thomas. For instance – "Nothing else than the rational creature’s participation of the eternal law", "Every human law has just so much of the character of the law as it is derived from the law of nature. But if in any point it differs from the law of nature, it is no longer a law but a corruption of a law", "…that positive law is a determination of natural law". One natural theorist is Kant Emmanuel – "No law can be right merely by convention", "Laws, as such, are to be regarded as necessary a priori – that is as following of themselves from the conceptions of external right generally – and not as merely established by statues".

Bentham Jeremy

He accepted Hobber’s identification of law – A law is what a sovereign commands (This approach can be associated to the case of Hitler and his power).
Principle of utility – the ability to way up the benefits of a product or situation and make decisions about it based on its usefulness or cost.
Suggested that certainty in the law could not be had without codification.
In 1832, Austin John published his theory that sought to clarifyy the distinction between law and morality. He stated that 'commands' are expressions of desire that another shall forbear, which is accompanied by a threat of punishment (the "sanction") for disobedience.

The disputed question is "is law really needed"? As simplistic as it may seem to answer, it is fundamental that we ask. Personally, laws are guidelines that set out appropriate behaviour that has been developed over time, and are based on moral beliefs, a human condition that sets out a purpose that society in general is called upon – or required to fulfill. Without the fulfillment of these desired tasks, man simply will become equal to animals – or worse still, allow their darker sides (or impulses) to emerge and control their lives. Thus, law acts as a guardian against the inevitable anarchy that would engulf humanity (if you want proof, simply turn to the riots that take place in America when officers of the law go out on strike).

On the other hand, we have those who believe that mankind is naturally good, and it is the external forces that surround us that are completely responsible for any wrong doing that takes place – for instance, the government.

Augustine’s assertion that law was a natural necessity to curb man’s sinful nature held the field for many centuries. But the belief that man’s nature might be corrupt and sinful has been at times weighed against the belief that man posses a natural virtue which is capable of development. Leaning heavily upon Aristotle’s conception of the natural development of the state from man’s social impulses, Aquinas held that the state was not necessary evil but was a natural foundation in the development of human welfare.

This continued perception of man with no laws or structures to force certain behaviours creating the ultimate ‘utopian’ society is legally termed (or coined) as laissez faire. But when we think about this supposed utopian society, we can see that it is not possible. The only time it would have ever been a feasible theory would have been at the time of man’s conception as in Adam and Eve – and history has already show us that their duration in paradise did not last that long. Come to think of it, even Adam and Eve had guidelines, no matter how limited, that they had to follow for their retention in paradise – and they failed - as would any other anarchy based, or limited direction society.

The most influential of all people that promoted anarchy of sorts, would undoubtedly be Karl Marx. He envisaged the overthrow of the capitalist society by a violent revolution of the oppressed proletariat. Law was nothing but a coercive system devised to maintain a classless society would be brought into being, and law and the state would ‘whither away’ as being no longer needed to support an oppressive regime. The Marxist looks forward rather than back to the Golden Age (if it ever really existed) when social harmony will be attuned to the natural goodness of man unimpeded by such environmental snares as the institution of private property. But it can be seen that the introduction of Marxist socialism has always been closely followed by the implementation of more laws and legal repression, rather than having them abolished.

It is fact, that even in the simplest of societies, some form of legal rule and guidance is without doubt needed to control the anarchist like environment – which ironically counteracts the entire purpose of a lawless society.


http://www.uplink.com.au/lawlibrary/Documents/Docs/Doc31.html