Political Science

Law refers to a set of rules set by a society in order to maintain order and safeguard the interests of individual persons and their property within that society. Historically, law developed long time ago and many rules were used to reconcile disputes and in decision making earlier then any physical courts or written laws came to existence. The first recognisable law is that which was contained in the Code of Hammurabi which was written by a king of ancient Babylon at around 1760 BC.

Immanuel Kant (1724-1804) Moral Obligation of the Law
According to Kant, law should form a good pedestal on which morals of a society cab be best expressed. Though he did not practise law to a large extent, he was greatly influenced by philosophy of explanation where he incorporated an empiricist approach with rationalism. He emphasised arguments through deduction and conceptual clarity. In essence, law is applied to judge between morality and immorality which should involve a sense of rationality rather than irrationality. His argument is centered on an unconditional moral obligation of the law which applies to rational beings and is independent of any personal motive or desire. He argued that, there is a big role played by personal will in conformity to the law that is being imposed to that person which he strongly argued in his moral philosophy of thought. He based this requirement on a standard of Categorical Imperative (CI) which is a non-instrumental principle as compared to the other instrumental principles.

In this view, he drew a line of separation between immorality and violation of this categorical imperative. He argued that, law should be based on a basic principle morality where the will of person should have autonomy in reasoning so as to give a meaning in abiding to the laws set. There should be a certain level of free-will in obeying the law than coercion. Such person would acquire a sense of selfgovernance which gives the subjects a crucial ground to view self as a feeling of having an equal respect by being worthy and equitable to others. Kant purposed to eliminate the legal fictions that were hindering the practicality of law. His main concern was in the giving of clarifications and justifications in order to avoid the use of legal terms that were causing confusion on the face of the law. 

In this view, the law should contain a moral focus in the sense that human beings tend to associate their actions to the goodwill invested in the laws that are governing them. Such goodwill gets its determination from moral demands which should match with those in the moral law. In most cases, there is a possibility of human beings viewing this moral law as obligating them to certain conformities and therefore become a constraint to their desires. In such a case, a will that is based on a moral law becomes decisive and tends to be motivated by the sense of duty other than goodwill.

An action in law may only maintain a moral worth if it expresses a goodwill from its inception to practical application. The conformity of ones actions to the law should not be related to obligation but rather to a persons content of self-will. In this context, if a person is motivated only by happiness, then conditions that do not lead to happiness would not entice one to performing a given duty. In contrast to this, the absence of these motivations to a motive of fulfilling a duty is where the lies the morality of action which helps one to act dutifully in all forms of circumstances. Kant, argument in the role of morality tries to strike this balance.

On his view, the single most important aspect that law should try to achieve is the motivation by duty which entails unhidden respect to the law and obedience to its statutes. The law should try to focus on the minds of the subjects in what comes naturally from the minds of a person. In most cases, obligations come as a result of rules in form of laws of one form or another. The obedience of law just because we are obliged to do so does not make sense at all. In addition, the obedience due to a motivation of avoidance of the repercussions also does not help the law in meeting the intention of a good law.

Kant relates moral of a given society to its vices and virtues. Such virtues would encompass all the moral efforts that are employed by peoples will in meeting their duties. Vices contradict all the gains of morality. His acknowledgement of vices lies on assumption of existence of a moral duty in the mindset of people upon who these laws are being administered. He looks at virtues as unambiguous if they are based on moral behaviour rather than a treating them as acts of good and bad conduct in a character. Such behaviour is guided by the pre-existing principles.

Otherwise, this would mean that by not being virtuous, human beings lack the power to overcome such challenges that present themselves in their lives. The law should emphasise on morality as a duty that should be fulfilled by the society because they have the will and capacity to do so. Reliance on the interests and demands of a person to fulfil our duties as a motivator will always lead us to contravening the law. By setting all the laws to conform to our morality, then the challenge would therefore be in the trimming the desires and interests that do not conform to the moral law. Such a balance is always a challenge that is faced by the law.

He believed that, the law should guide the actions of a person by delivering the motive of the underlying duty to meet the moral value intended by the law. According to him, the final result has a lesser significance compared to the feeling a subject has when carrying out an action. This is what carries a lot of value in law. Therefore, the law should embody itself on the way we perceive, identify and reflect upon issues and objects which would in this aspect form a make-up that is reflected from our experience. This concept is very important in helping us to make decisions that comply to the law.

Jeremy Bentham (1748-1832) Utility Principle
Bentham argument was based on the conviction that all laws whether traditional or modern should be based on a singular principle of utility. From the view of general population, a law is perceived as a bad law or a good law depending on whether it increases or reduces the overall happiness of a population. He is famed for his work Introduction to the Principles of Morals which later became the foundation document to the British utilitarianism. He opposed the natural law on how it applied its language and in interpretation of principles. He opted not to conform to the common ideology of existence of a separation between the state and the laws of the land in applications of such laws by the state which is always represented by the government. He therefore laid a number of obligations on the hands of the state.

First, he felt that, it was the sole obligation of the government to reduce the sufferings of its people and it would be very immoral for the state to allow its people to suffer needlessly. The state is therefore required to guarantee its citizenship with a minimal level of income. In addition, the state is obligated to provide adequate security against individuals and from other nations. Bentham also argued that, the state is obligated to ensure that there is a given level of abundance in terms of wealth and population. His conviction led to his introduction of differentiation between an individual and other social aspects. He recognized an individual as a hedonic calculation whose most important determination came from maximisation of individual utility as a major contributing g factor in his behaviour. He argued that, humans strive to maximize their happiness which he defined as the surplus of pleasure over pains. This leads to the idea that, the actions of human s comes from hedonic analysis. In this aspect, Bentham believed that, the presence of pleasure and pain explains the essence of action and the moral ethic behind it. He therefore based the calculus of value on these two basic principles of pain and pleasure. The fundamental nature of a person is therefore reliant on his or her well-being and reasoning. 

He therefore went ahead to reduce Altruism, love, duty, desire for freedom, faith and obedience off the law to an individuals calculation of pain and pleasure. He continued to draw a similarity between happiness and the means applied to achieve that happiness. However, he sought to focus on the effect of unlimited control of search of this utility on morality of a society. He settled on the ethical principle that, increment of general happiness yields good results while reduction of the general happiness of a person is equally bad.

Bentham emphasis lay on the importance of reason over the custom and tradition especially in the interpretation of legal terms. He therefore set to champion for legal reforms that would guarantee absence of legal fictions in its reality. He viewed that, considering any part of a thing in concept away from that thing tends to bring about the risk of confusion or in other terms causes a positive deceit. In such a time such fictional that related to relation, right, power, and possession had a lot of application though their original source could have been of less importance. Their survival in application resulted from prejudice, or lack of proper attention. He believed that, the nature of human can be well expressed through the expression of his social relationships. In addition, the term relation is viewed as a fictitious entity. In his explanation of human existence in scientific view, he referred to one person as an atom. Where there is no self or an individual but there is always a close relation with others in close relationship. This brings up the point of human relation where the measurement of pleasure and pain can be calculated in terms of their intensity, certainty, fecund city duration and proximity in comparison with other persons.

Benthams moral philosophy reflected the greatest happiness principle or the principle of utility which should be the greatest focus of law. He based this on three principles of principle of happiness, universal egoism and the ability of an individual to artificially identify his interests away from those of others. He campaigned for usefulness of the principle of utility which endorses or disapproves actions that are seen to diminish the happiness of people and society. He sought to separate actions which do not maximize the happiness as moral wrongs. Bentham asserts that, the principle of utility is an act that in acting refers either to explicit or implicitly and this is a fact that can be ascertained through simple observation. Therefore a moral strive by a person to pursue pleasure is accepted as a lead in the objectives of a person. He went a step father to clarify that these laws should be based on a moral principle.

In summary, the two philosophers views the law in its form as that which requires reform in the moral obligation and utility. Kant argues that, there is the possibility of achieving everything through freedom. The uncorrupted laws cannot be achieved through sumptuous conditions but are held in correspondence to the universal law of casualty of moral laws. Through his invention of critical philosophy, we are able to acknowledge our ability to decipher and explore the any possible limits to our ability to know through philosophical reasoning. His work is based on the moral philosophy. He recommends for the law to employ the moral duty in order to attain the oral value. On the other hand, Bentham sees the need of establishing a principle that would mean the good for the larger population in a society.