Thesis Statement:The Doctrine OF Equality before the Law is An Illusion
Introduction
law is ultimately not about justice but power laws generally are unjust and not everyone is equal before the law. This paper will try to identify the inadequacies within the laws using principles and ideologies of both ancient and modern scholars.
PART B: Natural Law.
General laws must source their originality from a natural location. The origin of the laws is what gives them their legitimacy. The doctrine of Law and morality dictates that law should enforce individuals rights only but not moral according to Mill. However Devin is of a different opinion and directs that laws should uphold societal values. The concept of Natural Law from morals and justice. Scholars like Aristotle believed that laws must be tested against a universal objective external standard in order for it to qualify as law with authority and a demand for obedience. He proposed that the external standard acted as a normal order intrinsic in the world. He also added that natural law was founded on nature and that human beings can find the natural order of things through reasoning.
“it is evident that the state is a creation of nature,and man is by nature a political animal”(Aristotle)
The criminal justice system is an example of how natural law has been applied by the government to control human criminal behaviors in the modern society. The criminal justice system of the former years had only been focused on protecting the rights of the accused person but recently have witnessed other goals such as exerting control over actions of the public, creating deterrence for others who may commit similar crimes,protecting victims and rehabilitating offender.
Other thinkers were of the idea that law originated from a supreme being or God and as a result had a religious standard. Thomas Aquinas for example believed that the state forfeit rights to rule when enacting laws contrary to moral principals other modern statues like the united Nations Declaration of Human Rights UDHR also provided external standards for application of natural law. However critics of this approach has question the tendency of natural law to set standards. There are too many issues that are independent like the conflicts between human rights and real world barriers to the implementation of such rights. Natural law proposes a general framework for all to live by. Homosexuality for example can be seen as immoral when viewed from a christian perspective. However the question is how can we place greater worth on one value system compared to another. It shows that as much as laws can reflect societal change it can also entrench the change
“not all is concerned with the legitimacy or moral content of the law”(Kelsen)
Legal system are therefore considered as self validating and have to be obeyed by the citizens.
: Legal Positivism
Legal positivism directed that laws created through the right channels are valid laws. Positiveness places great focus on the law maker and the legislative process rather than the composition of the law itself. Proponents of legal positivism believe that people will obey the law because of the consequences of disobedience. “ the sovereign creates a law that result in punishment if not followed”( Austin)
Although the fear of sanctions is the major reason why people fear to disobey the law, they generally do not agree with such laws. People have also questioned where law makers get their authority from? Most of such authority have been acquire through political offices.therefore does it mean that such laws loose their valid when a revolution occurs. This shows that he law is not separated from the politics. Legal positivism could theoretically justify many situations where a defiant leader create rules from an authoritative figure position which does not constitute laws. The position of legal positivism comes under criticism when when consider the tensions between liberty and the right of the state to influence peoples person lives seeking to create order while during extreme circumstances, the need to prioritize the state over individual liberty sets in.
Critical Legal Studies.
Human beings exist in diverse societies with different set of values. CSL does not view the human society as universal and acts an an antagonist to positivism and natural law theories. It suggest that eh law is not neutral and just. The law is however intermediate and the outcome of the the law is arbitrary. The wealthy individuals are favoured by the law as they can afford better lawyers. At the same time these individuals are the ones who write the laws. Law can therefore be seen as a tool for injustice entrenching power to the powerful and creating power imbalances.immigration law policies like the Australian White Immigration showed how laws create power imbalances and perpetuates injustice. An explicit policy during the 19th century was anti chinise and Indian immigrants. Being the Keystone of the Immigration Act prohibited certain people viewed as undesirable from entering Australia. Immigrants were asked to take distinctive language tests in European languages to prove their origin