Understanding of legal philosophy

The understanding of legal philosophy and its various branches can profoundly affect a legal practitioner’s practice and make it as a reference point when compared with excellence.

Legal philosophy plays a vital role in forming a foundation of values to follow for a legal practitioner. The philosophy concerned with law and the legal system could be defined as legal philosophy. For running a successful practice, a legal practitioner must enhance his basic knowledge by studying various branches of legal philosophy which can support his/her standings in practice during situations of a beyond duty performance. These branches prepares the practitioner in equipping him/her with superior knowledge, as it gives an interesting and a broader perspective in terms of  human equality, justifiable punishment for a crime, and a proper and encouraging legal enforcement of moral laws on its citizens. Following are some of the topics covered in legal philosophy which can assist in equipping a legal practitioner to assist him/her in generating a dignified practice:

Moral philosophy and law

According to Thomas Aquinas, moral philosophy is about generally choosing what should be done. It doesn’t say that choosing to do what would benefit an individual only but, in general, considering an entire life as an opportunity, one should choose to do certain things which would be bringing happiness to an individual as well as humankind in common and avoid suffering in general. Moral philosophy relates more to a human’s right actions effecting into general goodness for him/herself and to everyone else. Moral philosophy is the foundation teaching for a legal practitioner, as it is concerned for doing right morally for all mankind. Choosing what is good for an individual is a fundamentally termed as practical and this principles forms a set of characters which become virtues. Law is differently defined in different countries depending on its dominant religion, ancient history influence, past incidence influences, and peer pressure for forming a uniform legal system. A legal practitioner can practice by keeping the moral values as a reference point for all humankind, and can make decisions following his/her location laws by following moral principles of particular actions which benefits all humankind. Moral philosophy may differ in countries because of its generating roots form different society behaviours and beliefs, but it is considered to be on a much common platform on broader issues among many countries.Humans obeying laws is a moral and not a legal obligation[1]. Legality comes after defining moral values and is being defined based on moralities of societies and countries.

Crime and Punishment

Crime and punishment is a criminal law division. Crime is any act of doing harm to another being by an individual or multiple, and punishment is a suitable treatment after an individual or many have committed a crime of any kind which has harmed another. Crime ratios are subjective of location, social/economic/gender inequality, and sometimes of personal imbalances. Crime is presupposed as crime by criminal laws, and legal punishment is presupposed as a crime for which a punishment is enforced on. Crimes are a set of conducts which are considered wrong on the basis of social values and norms. Criminal law portrays crime not as prohibited actions and conducts, but as a set of wrongdoings. The legal practitioner should focus on what conduct is being termed as wrong instead of an analytical view of crime. Some abolitionists[2] have argued that the concept of crime should be replaced with terms like “conflicts” or “troubles”, as crimes entail punishment. The legal practitioner should focus on crime from a wrongdoing view to any individual and determine appropriate punishment available under the law to enforce on the individual. Crime and punishment differs to a great extent in many countries, for example[3], in Sweden, a women feel more confident in complaining about rapes as against other countries like the US, and across the Atlantic, because of the difference in the criminal laws in these countries. Defining crime and its conduct is of important nature as, differentiating what conducts are considered as crime will be of utmost help in determining a suitable punishment to the criminal.

Legal enforcement of morality

A society is linked to a morality, which is determined by a locations religious values. For example, Christianity has a moral code to follow, but in a religion which liberates people to have their own conscience, it cannot enforce moral laws on that religion[4]. Morality deals with a set of virtues that has being derived from traditional conducts of humans since past and now has been accepted to be as a moral law. The practitioner should not be able to enforce a law on a particular religion, gender, community, but can always enforce legal or capital punishment on an individual who has performed a wrongdoing and has harmed any other individual by behaving immorally. The practitioner can take immoral behaviour as a conduct which has been termed as an action which has in general harmed another in anyway. Legal enforcement of morality becomes difficult in today’s environment where a mixture of religions reside with each other and are liable to follow a region specific law first than others. Legal practitioners are bound by rules to enforce moral laws on wrongdoers and criminals. They can learn from the legal enforcement that a society has a personal morality as well as a public morality which they follow. The public has the right to use the legal practitioners to enforce morality on a section of society involved in wrongdoing. Morality is supposed to be followed by society as a public first as it would retain harmony among citizens.

Justice

Justice is a moral concept which depends on ethics, social status, inborn rights of humankind, fairness, irrespective of caste, creed, religion, social and economic status. According to Bottomly and Parkar, the existence of the rule of law is to protect citizen rights, curb government power, which can help them to predict certain actions by the government towards them. They believed that society should move from a scriptural based interpretations and move towards a more secular form of liberalism which is more beneficial and more tolerant. Corrective justice is about offering justice between two individuals who has harmed another. It should be rectified by following the legal justice laws based on morality. Distributive justice is about rectifying a wrongdoing or a misconduct concerned with a group of individuals and his/her right or share in a particular distribution. This should be rectified by the legal practitioner by considering certain inborn human rights of an individual. Justice is a form of morality as it is considered as a set of rules to be followed while punishing a criminal. Rawl’s concept of justice is to be have equal liberties to all humankind which includes, right to own property, right to follow one’s conscience, basic natural rights, freedom of speech and assembly, and a fair treatment under law. The legal practitioner should consider probable consequences of a particular punishment of a crime before providing justice to an individual who is desiring for it. The practitioner should consider all options of the intent of providing justice, whether it is to change a system, or to only provide justice and let the wrongdoing not curb in the future.

Equality

Equality is again a moral concept which refers to an individual’s inborn rights towards non-discrimination depending on caste, liberty, right to public usage of natural resources. Equality are of many types: social equality, economic equality, religious equality. Countries differ with their rules for equality among their citizens. Economic inequality is seen as a major reason for increasing crimes in a lot of countries. Social equality has risen as a reason of religious values being changed and followed by a set of communities. Equality as a legal law is concerned with getting equal rights to all individuals in a specific region, for example, all individuals in a country has a right to vote. This is the first of equality which seems to be common among the majority of countries. A legal practitioner should be willing to provide equal and fair justice and rights to an individual who is seeking legal assistance. Many countries like China and some gulf countries are still communist countries and want to save the social status and equal rights to their respective religion. Equality for the right distribution of government benefits, rights to natural resources, right to voice their opinion and allowing to follow their conscience are a must for any legal practitioner to follow, depending on some changes of the location where the practice is conducted[5]. The Tasmanian discrimination Act 1998 has prohibited discrimination on some grounds which includes, race, age, gender, social and marital status, political activity, religious activity and beliefs, etc. This is a great discrimination factor which assists in enhancement of equality among different religions, and age groups. The practitioner should follow the law of equality by following a moral conduct if humanity and practice constant non-discrimination towards any individual or a group without having any personal preferences or avoidances. The practitioner should arrange for situations and laws which provides maximum benefits to the least advantaged to create an example of equality enhancing actions. By doing so he would follow a path of morality which is considering good not only for himself, but also for others in general as a whole.

                                                            Bibliography/References                                             7

Finnis, John, ‘Aquinas' Moral, Political, and Legal Philosophy’, (2011) The Stanford Encyclopedia of Philosophy,http://plato.stanford.edu/archives/fall2011/entries/aquinas-moral-political

Oxbridge Notes, ‘The legal enforcement of moral standards’(Nov13 2013) Oxbridge notes http://www.oxbridgenotes.co.uk/notes/oxbridge/2012/jurisprudence-notes/samples/the-legal-enforcement-of-moral-standards

Crime and Clarity(Sep 1, 2012)‘The Economist’ India (online)http://www.economist.com/node/21561883

Namtvedt, Peter, Why must we obey laws?(Jan 29, 2008) Reason to Freedomhttp://www.reasontofreedom.com/why_must_we_obey_laws.html

United Nations third committee, ‘Social, Humanitarian & Cultural’United Nations http://www.un.org/en/ga/third/index.shtml

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[1] Peter Namtvedt, Why must we obey laws?(Jan 29, 2008) Reason to Freedom http://www.reasontofreedom.com/why_must_we_obey_laws.html

[2]John Finnis, Aquinas’ Moral, Political, and Legal Philosophy, (Sep 2011), http://plato.stanford.edu/archives/fall2011/entries/aquinas-moral-political

[3]The Economist India (online) Sep 1 2012 ‘Crime and Clarity’http://www.economist.com/node/21561883

[4]Oxbridge notes ‘The legal enforcement of moral standards’(Nov 2013)http://www.oxbridgenotes.co.uk/notes/oxbridge/2012/jurisprudence-notes/samples/the-legal-enforcement-of-moral-standards

[5] United Nations Third Committee, Social, Humanitarian & Cultural, United Nations, http://www.un.org/en/ga/third/index.shtml

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