Legal Positivism review

Legal Positivism review

Jeffrey Brand states a significant question in this chapter: ‘ What obligations,if any, does the law impose to us?’ The discussion starts on what kind of duty an individual has to obey law and whether we have a moral duty to obey law. The Duty to Obey the Law “leaves open the possibility that stronger reason could override one’s duty to obey in the right circumstances”.  DOL states that everyone has a duty to obey law.

Thomas Broden’s article Legal Positivism, is the main reason to understand the Duty to Obey the Law.  He believes that there is no individual in the government who can make rights and claim that law is the only power moral restriction. Borden starts his analysis with Austin’s reference, which is more popular in Legal Positivism topic. Austin claims that sovereign is been used in the government but he believes that sovereign is not above moral restriction. From that, Borden concludes that there is a difference between Natural and Spiritual Law-or let’s say better, difference between human’s and God’s law.

Broden continues with Hobbes who believes that the sovereign obeys the God’s law and the law’s of nature.  It is possible for sovereign to rule over its society but it can’t make rules that meddle the morals of the society. Broden’s analysis matches with Brand’s idea that since human has given to sovereign the power to rule them, they have to follow sovereign’s rules.  Brad argues that DOL applies to everyone within the jurisdiction of the legal system.  He also analyzes Rawl’s theory by explaining Hypothetical Contracts.

Legal positivist believes in DOL and agrees that morals should not be passed when creating rules. Broden examines this through the analysis of Justice Oliver Wendell Holmes. He argues that citizens should go against the sovereign and should protest for what is morally correct. Broden with the analysis of Holmes, discusses the civil liberties while Brand analyze in his book ‘Civil Disobedience’ .

Brand states Civil Disobedience as ‘’a form of civil resistance involving deliberate lawbreaking under special conditions’’. He mentions Thoreau who claims that citizens should not live with an unjust government.  Thoreau through his essay, makes assumptions on how the government and society should be constructed.

This week’s discussion try to analyze what particular conditions are needed for civil resistance.  In Rawl’s view, civil disobedience is a public, non violent, political act which tends to change the law or policies of the government. Thoreau uses a theory to propose how people should behave generally. He claims that one of the most significant issues is individualism. No one should sacrifice their values for the government.  If an individual supports governments’ actions then he supports injustices by the government. This carries a heavy responsibility to the individual: betray one’s integrity and commit a crime. Then the society would be unstable. This is further explained it Dr. Martin Luther King written letter from the Birmingham City Jail which says that there is a need of civic change.  Dr. King had used his justification of the law, in which Brand’s analyzes asking two questions: “(1) is it justified? (2) if so, under what conditions is it justified and what types of it are justified?” In theBirmingham City Jail, Dr. King argues that there is a citizen’s duty to protest peacefully for racial injustice in order to be considered equal under the law. Brand through Rawl’s analysis points out that in civil disobedience, you must have willingness to accept the legal consequences of your conduct. Dr. King was able to do the same, as he knew that it was right when defended his community.

To sum up, this week’s articles had to deal with the morality of when the citizens think that is correct to obey law. The Legal Positivist scholars where trying to advise citizens to not disobey the law because they are able to do so, but to disobey it when it is immoral. In Dr. King’s case he knew that there were consequences of his actions but he also knew that the law was immoral so it was right to not obey the law.

REFERENCES

The Straw Man of Legal Positivism, Thomas F. Broden

Letter from Birmingham Jail, MLK

Civil Disobedience, Henry David Thoreau