After having read Chapter 1, recall the idea that law is the “moral minimum” in a democratic society. Why is the law considered a moral minimum? Is this definition dependent on whether we are looking at the law from the perspective of legal positivism or from that of natural law? Explain in a way that demonstrates your understanding of the difference between these different perspectives. If you had to pick one perspective or the other, which do you prefer? Why?
This is my answer;
Law is defined as the body of rules of action or conduct prescribed by controlling authority and having binding legal force according to the Black’s Law Dictionary. The reason why the law is referred to as the moral minimum is because it suggests for society the bare minimum that is construed as ethical behavior. The law does not police citizens on their every action nor does it prosecute them for all their wrongdoings, however it prohibits behavior that contravenes“moral minimums” (Kubasek, et. al., 2012).
The definition of the law being a moral minimum is dependent on looking at the law from a perspective of natural law. This is because the natural law ideology reiterates that the law should be based on a universal moral order and that it exceeds human laws. It takes into consideration morality and that is what “moral minimum” also speaks about. In contrast, legal positivism focuses on the law as it is with no consideration of what is moral or immoral (Mayer, et al.,2014). Natural law is a concept that human beings instinctively follow and is the moral fibre that defines our actions. How a human being acts is typically in response to his conscience and perhaps what is deemed as correct by their religion. However, this might be seen as going against the laws of the state which is where legal positivism and natural law clash. The difference between these two theories can be simply explained as that legal positivism is ‘what the rules are’ and natural law is ‘what is suitable for us as humans’ (OpinionFront, n.d.)
The perspective that I would choose between the two is natural law. This is because we do not live in an ideal world where rules can be followed to the letter without taking into consideration the concept of morality and the underlying merits of the law. Natural law considers social context and I believe it is the cornerstone of any democratic society.
REFERENCES
1.
Kubasekundefined, N.K.undefined, Brennan, B.A ., Brownne , M., (2 012 ) . Legal Environment of Business , 6 th Edition . Pearson .
2. Mayer, D. , Warner, D., Siedel , G., Lieberman. J.K., (2014). Business Law and the Legal Environment: Executive MBA Edition (Version 1.0). Washington: Flat World Knowledge.
3. Understanding ‘Legal Positivism’ is Now Easy WithThese Examples – Opinion Front
4. Garner, B.A., (1999). Black’s Law Dictionary : 7 th Edition : West (Thomson Reuters) Publishers .
Respond to 5 people. Write if you agree and why. Please provide details. Make it relatable to my original post.
Zarah,
In my opinion, “moral minimum” is referring to how people are expected to act in society. With this, the law is considered a “moral minimum” because it is supposed to be something that everyone in society can follow as a guide. This way we know what is right and what is wrong. I feel that this definition is dependent on whether we are looking at the law from the perspective of legal positivism or natural law. Legal positivism focuses on the law it’s self which is more so a Rule made by a person in a position of power. Natural law is the opposite because it stresses the laws are created through experiences. This is very similar to the way that I explained “moral minimum” because I feel that it is would make more sense to create laws organically rather than being told how to act. “Moral minimum” would be based on following directions you are given by the person in a position of power with the prescriptive of legal positivism. This is a different kind of moral, so I think natural law is better since it’s based on more so being an overall good person that makes moral decisions.
Donnie,
The law is considered to be the moral minimum in a democratic society because it can not correct every wrong that occues in society. Its aim is to address the worst kind of wrongs in a society. The difference in ethical behavior and law abiding behavior can be currently seen in our current covid system. Currently anyone that has been vaccinated can go out in public without a mask. While a person that has not been vaccinated may be deceitful and not wear a mask that would be unethical but currently not breaking the law mainly because no lawsuits have been filed to set a precedent. Lets think back to biblical times when the commandments were first written these commandments were basically moral minimums. Thou shall not kill may seem to be pretty cut and dry but what about justifiable homicide, whenever a person feels their life it threatened it is seen to be okay to take a life.
This is not dependent on whether you are looking at the perspective of positivism which would say if a law is decreed it must be followed regardless of its fairness to all groups. However it is linked to the natural law perspective in that our laws have broadened and improved as we learned so what started out as a moral minimum has been honed to a more inclusive set of laws with finer points that don’t cut such a wide swath of impact.
I would prefer the natural law approach as it has specific statutes regarding the laws, with newer technology it is imperative that we continue to develop laws to address situations that until now were unknown. With upcoming future developments we have no way of knowing what the law will be but have to develop the network to prevent against unethical behavior that could result in unfair treatment to someone.
Lakirsta,
Moral minimum is a standard or principal upheld as being essential for moral conduct. A specific rule that one should due no intentional harm – which is often considered to be the bare minimum of ethical behavior. The law does not correct every wrong in society. At minimum it curves worst wrongs; the wrongs that violate the moral minimum the community demands of its members (Mayer et al., 2014).
After reading the content the force of good and evil is how I define positive law. Natural law gives one a way to point out what is wrong with positive law or the dangers of positivism. One example in our history that supports this point of view are the ancient laws of slavery. Positive law in this case was a force of evil because allowed unvoluntary transactions and did not take into consideration the rights of those impacted. Natural law points out the dangers of positivism.
Because of this I choose the natural law perspective, it allows us to point out laws that impact the rights of others and is a powerful way of pointing out when the worst wrongs are immoral and violate the basic moral minimum of human rights.
References
Mayer, D., Warner, D.M., Siedel, G. J., & Lieberman, J.K. (2014). Business law and the legal environment version 1.0. Flatworld Knowledge.
Ciara,
The moral minimum is a standard or principle that is upheld and viewed as indispensable for moral conduct. It is the “bare minimum” that is required for ethical behavior. The law is considered a moral minimum because it does not aim to correct every wrong thing that occurs in society but at a minimum, aims to address the worse kind of wrongs. Legal positivism states that “Law is the command of a sovereign.” In other words, law is only law if it comes from a recognized authority and can be enforced by that authroirity. Natural law emphasizes that law should be based on a universal moral order.
I believe that the moral minimum can definitely be percieved through Natural Law because it relates to a set of unchanging moral principles that are seen as the basis for all human conduct. One of the most common examples of natural law is the universally accepted and understood notion that killing someone is wrong. This is one of the moral minimums that our law addresses. Legal Positivism on the other hand recognizes the law makers command as legitimate and doesn’t question the laws morality.
If I had to pick between the two, I would chose natural law. The examples the text book gave of legal positivism being played out just didn’t sit well with me. lol I would have to be like my girl Rosa Parks and participate in a little civil disobedience if I felt like a law was issued that violated the moral minium or natural law.
Benjamin,
These moral minimums are in reference to the most general acceptable forms of behavior from society and its members. Therefore the law is what can dictate, uphold and sustain these moral minimums to a standard that can support justice in all the many forms be it intrinsic or far less obvious or substantiative. The schools of thought which encapsulate both legal positivism and natural law assign possible meaning or a principled base (or lack thereof in the case of legal positivism). Legal Positivism suggests that law derive its authority from either science and/or a dictator, king, or otherwise very flawed man. Not only is this kind of abhorrent thinking disasterous historically in cultures and societies that have tried it (in this instance, I would exclude the monarchies that were subject to religious principles although those are not without their noticeable faults and disasters) but thinkers like Niche for example warn of this cultural relativism where man is responsible for cultivating their own values. These bleed into what law would lean on for standards and principles. Naturla law however like natural rights provide a divine bedrock to which prinples and values are firmly built upon. However we know that in the hands on man, we’ve been able to twist and distort justice and truth so terribly that on any given day depending on the county, state, or country (and judge) who hears your case, you can walk out wealthy or strapped to a chair with a bag over your head and a paralyzing agent running through your veins. By this point I think it’s terribly obvious that there is a preference here to natural law. This perference relies on the rationality of a moral value to divine or natural principles. It appears however that in the absence of societal support of this, unmoral individuals game the system and find it easily manipulated over time. Still in any case, natural law in my estimation is the system that allows the most amount of oppoertunity (justice) to prevail successfully, honestly, and fairly.
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