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WRITE ON PHILOSOPHY AND LAW

WRITE ON PHILOSOPHY AND LAW – PHILOSOPHY OF EDUCATION (EDU)

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Introduction

Indeed, philosophy and law are familiar concepts in the experiment we call life. Thus, these concepts are of great importance and concern to philosophers, political scientists, jurists, sociologists, etc. The frequency with which philosophy and at times law are misunderstood and misconceived, provoke concern and debate in order to see the relationship between them.

The unwearied think that philosophy is not relevant to the concrete realities in the society. This is not true. Philosophy is not for those with massive intellects alone, it is approachable, one only need to be disposed, prepared and disciplined. It does not parade only senseless abstract ideas; it rather deals with concrete and particular issues of life.

In the course of our exposition one will discover that philosophy does not have the meaning many attach to St. Paul’s admonition that people should beware of philosophy in (Colossian 2:8). It neither means occultism nor atheism; it is rather knowledge of things through their ultimate causes.

It is purpose of this paper to espouse the concepts involved, show their relationships and argue that philosophy is particularly important in human life (society) due to its unique nature. Within the calculus of the topic are concepts such as: State, sovereignty, morality, ethics, common good, justice, etc.

 

The Concept of Philosophy

Ogugua (1994:1-2) did the job of analyzing the term philosophy from historical, theological and experiential perspectives. He (1994:6) writes: Philosophy itself is the problem of philosophy; though it has object like other disciplines. It defies from…ages ago a precise and concise, one generally accepted definition.

Plato in Phaedo, called philosophy “the noblest and greatest of arts”; and described it as the “acquisition of knowledge” in Euthydemus. For Socrates, it is philosophizing on death.

Definitions of philosophy abound as there are philosophers.  For Jacques Maritain (1979:   ) Philosophy is the science which by natural light of reason studies the first causes or highest principles of all things, the science of things in their first cause in so far as these belong to the natural order. Write on philosophy and law.

John Dewey defined it from its social context and sees it as “criticism of criticism”. All said and done, philosophy is essentially a reflective activity; reflecting on human experience with the aid of reason to seek out answers to some questions of fundamental significance for man in the society.

 

The Concept of Law

The definition of law is replete with controversies; irrespective of its appearing to be neutral, it is value-laden. Law is a pervasive societal phenomenon; a control mechanism for social relationships in the bid to regulate human conduct. What is the nature of Law? According to Montesquieu (1952:1), “laws, in their most general signification, are the necessary relations arising from the nature of things”. That shows that it signifies uniformity of operation; and as such is a measure of action.

 

In our context (within human society), it imposes moral necessity on man. Hence, we can hold that it is an integrative societal force defining relationships. Law is this effective, because it has some characteristics namely: consistency, persistency, predictability. Also, reciprocity and restraint, so stated Sofola, A (1994:257-266).

According to Wilson Woodrow as cited in Appadorai, A. (1978:59) law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of government. Write on philosophy and law.

Aquinas improved on all the definitions given, he states it is an ordinance of reason for the common good, promulgated by him who has the care of the community. From these definitions we discovered that laws need be rational, is made up of rules promulgated by one in authority, disobedience to it warrants sanction. Again, that it is binding and heads towards the actualization of an ethically good social life.

 

WRITE ON PHILOSOPHY AND LAW

The Common Good between Philosophy and Law

In a simplistic fashion, one can say it means that good that is common to all in the society. That end that is common to all, not just the (any) end that is for an individual or that is common to a group of persons. Human society has a nature and a destiny hence it has an end for it is  teleological, this end for Aristotle is the good life. Every society has it own collective good, that good which is common and beneficial to all; it is common to the parts as well as the whole; from the whole it flows to the parts. Evans, J.W. et al (1965:88) holds the end of society is the good of the social body. It is the good human life of the multitude of persons, their communion in good living.

 

There is a correlation between a person as a social unit, social units and the idea of common good. The common good is the good that the state can legitimately ask of its citizens.  For a  scholar, the common good is the end for which society exists. The common good is an intermediate end, an end that is also a means toward the ultimate end of each member.

He continued; it is the temporal welfare of the community, taken both collectively and distributively. Evans et al (1965:89) emphasized all the more: the common good is not only a set of advantages and utilities, but also integrity of life, an end good in itself. Write on philosophy and law.

Moreover, it could mean according to Rousseau in his Social Contract as cited by Barry Brain The undertakings. Which bind us to the social body are obligatory only. Because they are mutual, and they is such that in fulfilling them we cannot work for others without working for ourselves…

In addition, in the words of Benn S. et al cited in Brain Barry (1985:193) to seek the common good means to act justly. Little wonder, justice is considered the chief virtue of the State.

 

The Relationship between Philosophy and Law

If there were no relationship between philosophy and law, we would not have philosophy of law (jurisprudence), and social and political philosophy. There is because philosophy is the study of reality ‘per se’.

The application of philosophical principles to law is philosophy of law. It is that branch of philosophy connected with the intensity of human life as lived through the legal practice.

Karl Gareis (1968) stated that:

To the philosophical jurist, law is the expression of an idea. It is an expression of right and justice found rather than made by legislator or judge or text-writer.

This is represented by the natural law school of law. Philosophy is not concerned with facts, rather it is concerned with values, that means in the very strict sense, analytical and historical schools of law. Do not qualify as philosophy of law. According to Pizzorni, R.M. (1971:16)

Values are eternal…but they are discovered with the passage of time. Absolute values of the juridical order are values of justice. These are the proper objects of the philosophy of law.

 

For him, the tasks of philosophy in relation to law will be determining the universal concept of law. The foundation of law, and its value, and the standard for evaluating laws. Omoregbe, J. (1997:173) added his voice. He writes:

The philosophy of law is not the study of particular sets of laws of a given society or a given epoch, nor is it the study of legal systems. But rather the study of the universal and permanent features of law.

 

We can then see that there is a science of law (taken care of by the analytical and historical schools of law concerned with empirical study of law) and philosophy of law. Philosophy is of great service to law; it not only helps in analysis but equally in organization of thought and building of systems.

There is reasoning in law known as ‘legal reasoning’ the branches of philosophy known as logic and epistemology aid legal science in this area.

 

The Importance of Law

Irrespective of the system of government in practice, it is generally accepted that law puts in place normative rules, which bind the people with the attendant legal consequences. Law helps in defining relationships in the society and regulating human conduct. In the words of Olusola Aluko (1999:147)

Law…acts as the necessary equilibrium to stabilize and enforce the independence, impartiality and integrity of courts of law and to ensure easy accessibility. It equally stimulates social change for change is inevitable in any society.

There is need for law in order to handle this changing structure of human relationship and create enabling environment devoid of dangerous conflict. Is it not why Farrar (1977:4-6) presented law  as an instrument of social control? Within the framework of law and order, he contends, law may also serve to suppress deviant behaviour.

It is the function of law as enshrined in the constitution to regulate the arms of government, hence it makes room for a responsive and responsible government. Abumere, P.I. et al (1997: 27) hold law lays down rules for succession to power and defines who has the right to exercise what kind of power in society. Write on philosophy and law.

I wonder if human beings being selfish and at times self-centred would have actually respected the rights of others if not that law has coercive and sanctive powers.

 

The Need for Law in Human Society

Indeed, law is an essential part of the state. The law binds the members of the state together. It signifies uniformity of action. It is to the State what the soul is to the body.  The need for law can  be traced to its very nature; it is prerequisite for order in the human society. Dennis Lloyd (1981:336) wrote “law is a central concept in human society, without it, indeed, there would be no society.”

The arguments of philosophers from of old irrespective of the strands they took boil down to the relevance of law in human society. Law is a necessary and approved means of putting the instincts of man under control. It is equally clear that even in a state of innocence contrary to the position of Rousseau, or Marx (in classless society) that law is required in human society.

Curzon, L.B. (1979:28) pointed out three recurrent issues in the nature of law;

  1. The existence of law means that some actions are no longer optional;
  2. There are similarities between law and morality;
  3. Legal system is made up of rules; this is why some jurists talk of law as a rule of action. Not only jurists but philosophers too i.e. Murray (1963:188).

 

All seem to support the existence of law save the anarchists. Hadfield, J. (1965:35) stressed, a state should be ruled in accordance with its constitutions and known laws which have been passed by duly empowered authorities. It is the government that has the responsibility of executing these laws of a state. In the words of Laski, H. (1978:35) “Law is the coercive power of any state, for it is this power which is called into operation to prevent or punish infractions of the law”.

Experience has shown that life will be unbearable if States do not have laws. As the society (apologies to contractualists) is natural, law too is natural to man for it aids man to pursue his end guidedly. Law has a kind of connection with freedom, morality and some other virtues.

 

Philosophy and the Society

Experience has shown that many confuse philosophy with occultism, atheism or even deceit (as St. Paul in Colossians, 2:8) warned. Inspite of these misconceptions, philosophy has stood its ground doggedly for what it is, the study of reality ‘qua tale’, concerning itself with the good, the true and beauty. It is a reflection on human existence and experience in a critical fashion.  Indeed,  it is a spectacular force, which has shaped the minds of men, liberated man from ignorance, opened the gate of freedom. Also, moulded men’s character and led nations to the altar of development and civilization.

It does seem that we need at least an iota of philosophy to live in the society, to be able to think rationally, employ the canons of rational enterprise and communicate without creating confusion. For Ogugua said to use a word capable of being misunderstood, one need to define it or else one must be misunderstood. Mabel Olaolu (1999:154-155) believed that we do not have a choice, that we need philosophy. She writes:

Our only choice is whether we define our philosophic mind by a conscious, rational, logical process of thinking or we allow our subconscious to accumulate a heap of unwarranted conclusions.

As philosophy gives critical and adequate (holistic) understanding of life, every human society needs the services of philosophy, if it will continue to exist meaningfully. Let us see the relevance of different branches of philosophy.

Logic is of practical utility, it is the science of correct reasoning, its importance is multi- disciplinary. For instance, legal thinking makes use of logic and its principles; by laws of inference a doctor uses it in treatment of his patients.

Metaphysics has been misconceived as occultism, voodooism, jujuism or atheism. Some philosophers even asked for its rejection (Positivists). It is indeed of theoretical utility in human  life. It is relevant as the comprehensive study of reality, hence it grounds every other branch of learning.

Epistemology has to do with theories of knowledge and not a theory of knowledge. Epistemological enterprise is rich as it is a critical examination and evaluation of human knowledge in its varied aspects or forms. This branch of knowledge raises our knowledge and level of awareness and consciousness. Hence, makes us mature beings on the planet-earth.

Ethics, no doubt is relevant in the society. It helps in bringing out that ‘imago dei’ in man as he lives with the other in the society. Ethics asks the critical question of morality, why be Moral? This could be interpreted to mean why should I be moral? Or/and why should there be a moral system in the society? Each question has answers. Ethics deals with questions of moral obligation. It is the branch of philosophy, which scrutinizes human conduct, it applies to every aspect of our life. In the words of Mabel Olaolu it is “the technology of philosophy.”

 

Conclusion

From the foregoing, I have to state emphatically that these concepts ‘Philosophy and Law are related. Philosophy as the mother discipline grounds law, and is equally at the service of the society.

Philosophy has to grapple with the problem of human existence, law, society, change, crime, etc. By and large, philosophy has great relevance in law and the human society in general.

 

References

Abumere, P.I. & Edeko, S.E. (1997) Elements of Legal Methods Benin: Ehioda.

Evans, J.W. & Ward, L.R. (1965) The Social and Political Philosophy of Jacques Maritain N.Y: Image Books.

Karl Gareis (1968) The Science of Law N.Y: Augustus M. Kelley Publishers. Write on philosophy and law.

Laski, H.J. (1978) Introduction to Politics London: George Allen & Unwin Pub. Ltd.

Ogugua, P. (1994) Philosohy for Beginners Osha: St. Jeromes Press. Write on philosophy and law.

Ogugua, P.I. (2002) “Law and Morality: Historical Co-philosophical Survey” in Uduigwomen, A (ed) Sophia: An African Journal of Philosophy Nigeria: Dept of Philosophy UNICAL.

Sofola, J.A. (1994) “Order and Deviance in Human Society” in Onigu, Otite (ed) Sociology: Theory and Applied Lagos: Malthouse

Wittgenstein, L. (1969) Philosophical Investigations trans. Ascombe, G.M.

 

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