List of practice Questions

A thought-provoking book titled The Morality of Law by Lon L. Fuller on moral philosophy insists on a distinction between “morality of aspiration” and “morality of duty”. From the view of the morality of aspiration, human conduct does not bear on mandatory rules but on conceptions of the “Good Life”, of “what beseems a human being functioning at his best to human capacities”. Because no law can compel a man to live up to the excellence of which he is capable. But for workable standards of judgment, the morality of duty lays down the basic rules without which an ordered society directed towards certain specific goals must fail of its mark.

Because the duty ties it very closely to what is “rationally discoverable” and “objective”, as contrasted with the morality of aspiration based on subjectivism. However, moralists may differ as to what range of conduct should fall within the respective spheres of duty and the morality of aspirations. “When we are passing a judgment of moral duty, it seems absurd to say that such a duty can in some way flow directly from knowledge of a situation of fact.” Due to the fact that before we conclude “that a duty ought to exist”, however well we may understand the facts, by the close connection between understanding a person's ideals, approval and disapproval, it is clear that duties are not purely matters of preference.

Does this mean that duties are rationally discoverable, and a matter of choice, even if not of “ineffable preference”? Presumably not, since when we pass a moral judgment of duty, it “ought” to exist. It is necessary to distinguish between the accepted morality of a social group and the personal morality of individuals. “Duty” may appear in all of these, but the satisfaction is very often a matter of degree varying from situation to situation.

The rule of a morality of duty is necessary for social living. The morality of aspiration provides a general idea of the perfection we ought to acquire. If we consider the whole range of moral issues, we may imagine a yardstick which begins at the bottom with the most obvious demands of social living and extends upward to the highest reaches of human aspirations. Somewhere along this scale an invisible pointer marks the dividing line where the pressure of duty leaves off and the challenge of excellence begins.

The whole field of moral argument is an undeclared war over the location of this pointer. Those we regard as being moralistic are always trying to inch the pointer upward so as to expand the area of duty, bludgeoning us into a belief that we are duty bound to embrace this pattern of human conduct, instead of making us realize a pattern of life they consider worthy of human nature.
Both lawmen and laymen often ask, ``What is the law applicable to a given set of facts?'' The answers to this question differ depending upon the specific jurisdiction to which the given set of facts is linked. Contrary to this, scholars and students of jurisprudence are likely to ask the general question, viz ``What is Law?''. This question on the philosophy and nature of law supposes that law is a distinctive social-political phenomenon with universal characteristics that can be perceived through philosophical analysis. In such a study, the assumption is that law possesses some universal characteristics.

An analysis of the philosophy of law can be done for different reasons. Apart from a purely intellectual interest in understanding this complex phenomenon known as law, scholars also study the same as a normative social practice that purports to guide human behaviour, giving rise to reasons for action. The primary challenge of the branch of scholarship known as jurisprudence is based on this ``normative, reason-giving aspect of law''. At the same time, we must understand that law is not the only normative realm in any given society. It is one of the many normative standards such as morality, religion, customs and usages, etiquette, self-regulatory standards within a family or corporation, etc. So, it is also essential that we study law on the differences and similarities of the same with these normative standards.

While discerning these connections and contradictions, legal theories often study the content of the norm apart from giving importance to the source. Generally, theoretical studies on the content such as natural lawyers emphasize values such as fairness, justice, liberty, etc., as qualifications for the norms to be called laws. They have argued that laws must be in tune with certain principles of inner morality, such as that laws be general, public, prospective, coherent, clear, stable, and practicable, which are indispensable to law-making. Whereas theories that give prominence to the sources of the norm, such as enactment/command by political institution/authority, do not always emphasize the content.

Such philosophical analysis of law comprises both explanatory and justificatory aspects. While the explanatory aspect consists of explaining how laws can give rise to reasons and what kinds of reasons are involved, one example of this would be Dworkin’s classification of law as concepts, principles and rules. The aspect of justification concerns whether people ought to comply with the law's demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it.