Related questions:
·
‘As
a doctrine, natural law appeals to the world community for various reasons. Its
major attraction lies in the fact that its enterprise aims at transcending the letters
of the law to the realm of the spirit’. With good examples, critically evaluate
this statement, showing the imperative role of the doctrine (natural law) in
the modern world’.
·
‘’The
controversy of ‘is-ought’ theory, the justification, rationale and the moral
basis of positive law centers on its derivation from natural law’’. Examine
this controversy and its import in what ought to be law.
(YOUR INTRODUCTION)
THE ‘’IS-OUGHT’’ CONTROVERSY
Regarding positive law, there has always
been the need to make a distinction between ‘what is law’ and ‘what ought to be
law’. This is as a result of the subjectivity and relativity in moral attitude
across various civilizations and cultures. Natural law is self-evident, in
that, man is by nature a moral being. This implies that man has an intrinsic
ability to automatically recognize what is right and what is wrong, what is
just and what is unjust, what is virtuous and what is vicious. But due to the
variation in human moral attitude, there is still some difficulty in
classifying what the law ‘is’ and what the law ‘ought’ to be. This is akin to
the idea that what may be truth for one person could be untruth for another.
THE APPEAL OF NATURAL LAW
Firstly, it must be said that natural
law as a doctrine appeals to the world community at large, especially the
modern world. To start with, this appeal logically springs from the fact that
natural law centers on benefits of nature, and mankind has an intrinsic
tendency to desire and crave for the benefits which Mother Nature holds; and
only natural law can fully wrest any stolen natural rights of man back from the
oppressor.
However, there are several other ways
by which natural law appeals to the world community, some of them are;
·
It
aids in the search for justice and the promotion of public good. Since law is
the hallmark and essence of the state, natural law productively re-enforces it,
as the life of man in society would be continually in disaster, were it
unregulated by law.
·
It
exposes the deficiency of positive law, by distinguishing the practically
unreasonable from the practically reasonable. Natural law in this regard, has a
voice which says ‘no one is above the law’, as man, by nature is intrinsically
equal. It also ensures that judges are made to be alive to their
responsibilities.
·
It
serves as a guide for human action, in a manner akin to ethics. The difference
is that ethics is a creation of man while natural law, as the name implies is
an automated product of nature.
These and several more are some of the
ways by which natural law appeals to the world community at large. However, it
is noteworthy that the major attraction of natural law lies on the fact that ‘its enterprise aims at transcending the
letters of the law to the realm of the spirit’. In order to better buttress
this point, some practical instances where this has been the case (in our
modern world) would be analyzed below.
MAJOR
ATTRACTION OF NATURAL LAW TO THE WORLD COMMUNITY
When we say that ‘natural law
transcends the letters of the law (positive law) to the realm of the spirit’,
what do we actually mean? Simply put, this implies that there are some unique,
particular cases where positive law fails to meet to meet the standard of
judgment, as it does not have the full capacity to do so. This is because
positive law is the ‘intuitive’ creation of man, so it logically follows that
it would be imperfect and somewhat restricted, as man himself as its creator is
imperfect. However, this is not the case for natural law, as it is infinitely
transcendent; surpassing the boundaries of existence because its source
(nature) is perfect and transcendent. Hence, natural law should automatically
come in where positive law fails to perform adequately, or at all.
Let us consider the following
practical case scenarios;-
·
The
case by ‘Corbett v Corbett per Ormerod. J’
In this celebrated case by
‘Ormerod.J’, it is shown that the doctrine of natural law becomes very useful,
especially on an issue that is not covered by the arguments from an authority,
which the lawyers are familiar with.
In the year 1970, this
particular case (the first of its kind) as handled by the English judge, ruled
that ‘a marriage between a man and a person that had undergone a sex change was
invalid’. This occurred as a result of the man in the marriage been deceased
and the ‘woman or wife in quote’ (a man who had undergone sex change to
becoming a woman) appealing to the court to take charge of the left behind
inheritance, which had no will back it. Due to the fact that, there was no
legal provision for such weird cases within the jurisdiction of the positive
law (as at then), ‘Ormerod.J’ subscribed to the application of natural law, as
the marriage itself was a distortion of nature. He then proceeded to declare
that the marriage itself was invalid, implying that there was no marriage in
the first place. His basis for this was the natural law which says ‘marriage is
an essential relationship between a man and a ‘woman’ (and not a man in a prefabricated body of a woman). Hence,
the criteria in Ormerod’s judgment, was a biological natural law, which
automatically rendered the marriage invalid. Thus, as shown in this case, natural
law has transcended the letters of the law to the realm of the spirit.
·
The
case of the sterilization of a mentally defective girl
Regarding another case which took place in
1976, there was an issue in which the parents of a mentally defective girl
decided to have her sterilized i.e. to make her barren either by removing or
blocking her womb medically. They really had good intentions for their
daughter, as they did not want some opportunist guy to take advantage of her
mental defection, and probably get her pregnant. However, according to the
maxims of natural law, this is not moral, as the action of the parents was
geared toward removing the girl’s fundamental human right to produce. Although
they had good intentions, their passionate concern made them forget (or rather
ignore) that the girl in question would still at least need to have a child
later on in life, despite her mental condition. Hence, natural law came to her
rescue, as it saw what her parents or positive law, could not see. There was a
court order moved to prevent the parent’s actions, as the girl in question was
helpless, and needed an intercessor to aid her; and natural law did just that.
FINAL SUMMARY
From the above cases, it is clearly
shown that natural law has transcended the letters of the law (positive law) to
the realm of the spirit (natural organization). It has performed excellently
well where positive law failed or did not have the ability to actively perform.
Therefore, natural law is seen as a higher law when compared with positive law.
Natural law performs the role of determining if ordinary laws are morally
binding on subjects. Like ethics, it is discoverable by reason and this is the
basis of its natural quality. Truly, natural law plays an essential role in the
modern world.
(YOUR CRITICISMS AND CONCLUSION)
No comments:
Post a Comment