The authority of laws comes as a result of an unwritten social contract between all the members of a society who choose to live in that society. They gain their authority by being willed by the majority of the people, and because of the way in which they are drawn up they do not possess any absolute qualities.
Some people may think that law and morality are the same thing, but they would be incorrect, however there is undeniably a link between the two; the morality of a society, or it ‘mores’ have a strong influence on the laws that are drawn up. There re three main ways in which philosophy sees the relationship between morality and law, these are legal positivism, natural moral law and the interpretive approach.
Authority on the other hand is considerably different to the concept of law, it can be defined as the ability and/or right to enforce or demand acceptance and obedience. According to some we, as humans, all have the need for authority, not to be dominated though; clearly a divine figure would fill such a need. Sources of authority vary greatly, however, everyone obeys or is influenced by authority of some sort as they perceive it. Some examples of authority are; general human welfare, self-interest, God, gods, moral prosperity and social approval. Authority in morality comes from two main sources the divine and the human. According to the Divine Command theory, God is seen as the supreme moral governor, and using God as a source of authority means using your interpretation of God as a source of authority. According to Natural Law there is a moral pattern designed into nature by God, authority exercises itself through our ability to reason towards the natural law and law itself. Contractarianism basically states that all humans should cooperate with one another, that way the greatest good is maximised.
Justice in Plato’s mind was the ultimate virtue, perceivable and achievable only by a person whose intellect, will and emotions all work in harmony. There have been several community-centred approaches to justice for example those of Marx and Rawls, these have common principles; we all have a moral obligation not to hurt others in the satisfaction of our aims of life-fulfilment. We all have a moral obligation to help others worse of than ourselves, in their quest for fulfilment.
Rawls, like many classical liberals believe in the social contract theory, and he thought that for justice to be greatest in society, everyone needs to join up to a social contract. Justice then for Rawls, is an equitable distribution of all the available goods in society. There are three types of justice, these being; distributive, retributive and corrective. Principles of distributive justice are normative principles designed to allocate goods in limited supply relative to demand. The principles vary in numerous dimensions, they vary in what goods are subject to distribution. Retributive justice can be summed up by; 'The most extreme form of retributivism is the law of retaliation: "an eye for an eye.” This alone, Kant claimed, could provide a just measure of the penalty, since it was the crime itself and nothing else that settled it. However, to try to apply it literally might be monstrously cruel, or, as Kant realized, it might be absurd. Thieves can be deprived of their property and murderers hanged, but what penalty is appropriate to the drug-peddler, the black-mailer and the smuggler?’ Corrective justice is trying to correct the injustice caused by a persons action or actions as best as possible.
Punishment has to hurt in some way, or else it is not punishment, it is a logical impossibility for punishment to be pleasant. Hurting someone cannot be seen as good in itself according to some people, even if it is necessary; it becomes a necessary evil. However, Immanuel Kant said ‘when someone who delights in annoying and vexing peace-loving folk receives a right good beating…(it is a bad thing)…but everyone approves of it’. Kant clearly felt that the culprit deserved the beating as his punishment. However, punishment may ‘feel’ right, but how can it be justified philosophically?
There are three main philosophical approaches to punishment, these being; retributive, reformative and deterrent/utilitarian. The retributive theory of justice assumes that any offender who committed an offence as an act of free will has chosen to upset the ‘scales of justice’, and so for the balance of justice to be restored his or her offence has to punished. An example of this is tax-evaders, they benefit from their illegal actions until caught and punished, which restores the equilibrium of the communal tax burden and exacts punishment for cheating society. However, this theory is not concerned with the prevention of future crimes, but merely the punishment of crimes committed. Bertrand Russell claimed that rehabilitative or reformative approaches will cure the causes of crime in order to stop future crime. In doing so, Russell used the analogy of the broken car compared to a human being who commits an offence; no one in their right mind would claim that the car was sinful for not working, and refuse to give it fuel until it worked, they would find out why the car is not working and then put it right, and this is what needs to be done with humans who commit offences.
The reformative theory of punishment sees little value in mere punishment; punishment is only valuable insofar as it changes the attitudes and therefore future behaviour patterns of anti-social offenders. The reformative approach is obviously about reforming the offender instead of mere punishment, hence the name reformative. Therefore, compulsive thieves (kleptomaniacs) are given psychiatric help to overcome their obsession, violent muggers are made to face their victims and the consequences of their assault and robbery, and the unemployed shoplifter is trained in a skill and given a job. Therefore, this approach actually holds punishment as only part of the process of rehabilitation. The idea included in this theory is that the unpleasant aspects of punishment will teach/train/condition the offender not to offend again.
Finally, the deterrent/utilitarian theory of punishment, which Jeremy Bentham was an advocate. Bentham said that ‘all punishment in itself is evil…it ought only to be admitted in as far as it promises to exclude some greater evil.’ He also believed that punishment was only good if it achieved the greatest welfare for the greatest number. Those rules which prohibit anti-social behaviour have to be enforced, from a utilitarian perspective, to prevent community life from being uncivilised.
