HSC 3020 W5 Assignment Evolution of Laws
HSC 3020 W5 Assignment Evolution of Laws
There ought to be, and many times is, a close nexus between manmade law and justice – law should aim at justice. Laws should be the objective expressions of the nature of reality rather than merely the subjective prejudices or whims of some person, group of people, or society as a whole. Natural law is objective since it is inherent in the nature of the entity to which it relates. The content of natural law is accessible to human reason. For example, it is easily understood that since each man has a natural right to survive, flourish, and pursue his own happiness, no other man or group of men should attempt to deprive him of a chosen value or action through the initiation or threat of force.
Historically, socially emergent ideas of legal principles, oftentimes in accord with the nature of reality, occurred prior to their adoption by political authorities. Voluntary forms of governance through customary private laws preexisted state law and effectively ordered human affairs. Law arose as a spontaneous order – something to be discovered rather than enacted. Law is an evolutionary systemic process involving the experiences of a vast number of people.
Law as a natural outcome of society
The idea of law includes fundamental rules of behavior, as well as institutions and devices for changing, clarifying, refining, and applying the rules. Law is a natural outcome of people living and working together. If people are to live among others, there must be a way to resolve the inevitable disputes. Law can be seen as the activity of subjecting human conduct to the governance of rules.
The evolution of law began before history was recorded with laws built up one by one as disputes were settled. In fact, the development of rules in society predates both courts and the written law. For thousands of years, customary and private legal systems alone ordered human activities. The power of customary law is found in the fact that it is reflected in the conduct of people toward one another. The further a society moves away from customary and private law systems, the greater the need for laws coercively enforced by the state.
The law is essentially discovered, not made. Law is a systemic discovery process involving the historical experiences of successive generations. Law reflects and embodies the experiences of all men who have ever lived.
Customary law involves spontaneously evolved rules emerging through dispute adjudication. Customary law provides a rather reliable process for discovering the natural law, since a spontaneously evolved and voluntarily followed custom is more likely to result in mutual advantages to the involved parties than a rule imposed by a powerful group. Natural law is the immutable standard to which manmade laws must correspond in order to be legitimate. Natural law is the general body of rules of right conduct and justice common to all men. Analogously, a common law system in which law arises via judicial precedent is better than a system in which courts and judges merely apply positive laws enacted by a legislative body.