Nature of Law and Impact on Contemporary Global Legal Systems

One of the most critical aspects of legal affairs is the place of morality in the process of establishing justice. Its use in this field seems necessary but remains dubious in practice because there are no explicit guidelines, which explain the rules and regulations in this regard. Meanwhile, excluding this component from substantive claims is unacceptable from the point of view of external and internal perspectives of all participants, which significantly differ from one another. Therefore, morality is linked to the law since it underpins the implementation of legal theories, facilitates the coordination of research in cognate disciplines, and provides the basis for studies concerning existing systems in Australia.

Legal Theories and Their Relevance to Society

Descriptive Legal Theory

The first theoretical approach under consideration, which applies to morality in law, is the descriptive legal theory. It aims to explain the nature of the field, the decision-making process, and the consequences of adopting various solutions to address emerging problems.¹ In other words, this method is based on the analysis of gathered facts and, hence, is considered contradictory from the perspective of morality. ²

Without including this element in the investigation of cases, one risks facing the methodological issue in the form of the failure of any attempts to evaluate people’s motives and other similar considerations. As a result, the disagreement with the goals and purposes of different laws becomes inevitable, and the optimal course of action, in this case, is the examination of a potential conflict of personal and public morality.³ In this way, the received information concerning details will be beneficially complemented by everyone’s perceptions.

Normative Legal Theory

The second method of studying legal cases is referred to as a normative theory, and it also appears to be insufficiently objective when excluding morality from the process of examination of materials. This approach strictly follows the established norms, and the values incorporated in law present the principal orientation of specialists who adopt it.⁴ For example, it can be applied to the task of protecting the interests of specific population groups.

However, implementing this initiative without moral considerations similar to the ones described above will also fail to reflect reality. As a result, the primary rules of obligations will not be advantageous for the purposes, which were emphasized when designing specific regulations.⁵ In turn, the balance between the ideal and non-ideal approaches or, in other words, between the creation of an optimal legal system and constraints will be impossible to achieve.⁶ In the end, the distortion of the initial intentions of legislators will lead to the failure of corresponding entities to establish justice.

Critical Legal Theory

The third method selected for contrasting legal aspects of decisions and their moral underpinning is a critical legal theory. It means the emphasis of scholars who use this approach on reason, which they believe to be a universal foundation of law.⁷ From this perspective, this discipline is not a distinct field but an area operating combined with other spheres for examining related phenomena while referring to their logical explanation. Nevertheless, this conviction seems to ignore the fact that, considering the interrelation between various domains of expertise presented above, the successful outcomes of examination are conditional upon the presence of a link between them.⁸ In this situation, morality perfectly fits the purpose, efficiently addresses the gap, and, consequently, is an integral part of the process.

The Law’s Connection With Cognate Disciplines

The above analysis suggests that moral considerations are essential for a thorough assessment of each legal case. Hence, selecting a suitable theoretical approach for this purpose, whether critical, descriptive, or normative, does not change this fact. The mentioned legal frameworks are relevant to present-day society; nevertheless, they are insufficient for fair treatment of citizens when neglecting morality.

The situation becomes even more complicated when numerous fields are involved in the initiative to establish universal justice. Thus, for example, one of them is experimental psychology, which corresponds to the adoption of the critical legal theory because they both are oriented on logical reasoning in examining events.⁹ Their combination has proved to be highly advantageous in studies with hypothetical scenarios, and the latest technological advances facilitate the acquisition of necessary knowledge.¹⁰ Therefore, the possibility to apply the above legal approaches to other fields is confirmed by scholars’ expertise.

However, the opportunities for cooperation in this regard exist not only in psychology and similar areas. For instance, the efforts of specialists in Economics and the legal sphere showed that the latter significantly benefit from the adoption of the former’s scientific approach to examining different phenomena.¹¹ In addition, the experience of researchers in sociology and law confirms this stance by describing the benefits of including the results of social studies in lawyers’ practice. According to them, this initiative allows organizing the so-called multidisciplinary socio-legal research, which is efficient in providing empirical evidence for essential decisions.¹²

Thus, it can be concluded that the law’s connection with other cognate disciplines, such as experimental psychology, Economics, and sociology, is suitable for addressing the theoretical drawbacks described in the previous sections.

Theoretical Underpinning of Law and Legal Systems

The development of legal theories underpinning the law and corresponding systems is vital for their proper functioning. In this case, the scholars agree that this field serves as a tool for maintaining order, peace, and stability and regulating the patterns of human relationships to avoid any violations.¹³ From this point of view, the theoretical underpinning of the specified concepts and entities in Australia is connected to the need to ensure the unity of different states when discussing crucial matters.¹⁴ For this purpose, it is critical to pay particular attention to selecting approaches for examining various cases on an individual basis. This requirement is explained by the fact that legal systems cannot be efficient if they solely rely on a single theory since it is incapable of providing the complete picture of the law.¹⁵

Moreover, the moral aspect, which is confirmed to be essential for this objective, can be addressed only after the success of attempts to bridge the gap between descriptive and normative theories with conflicting methodologies.¹⁶ Thus, the general theory underpinning the mentioned needs will be optimal with the emphasis on the coordination of actions and the combination of methods for examining events in the future.

Theoretical Basis of Future Legal Study and Practice

Considering the results of the analysis of existing systems and corresponding theoretical information, it is needed to state that further legal study and practice should be based on elaborating specific measures. They should be intended to eliminate the risks of unfair treatment of Australian citizens and, consequently, find a compromise between the visions of different states. In this regard, the adverse outcome is possible if the people’s discontent continues to increase. Therefore, their lack of understanding of the feasibility of different measures alongside the incapability of representatives of legal institutions to explain them might lead to the failure of the system to establish justice. The proposed basis for future decisions is confirmed by the requirement to handle the conflict between authority and autonomy.¹⁷

It is also advantageous for promoting the standards of common morality instead of explaining justice by subjective perceptions.¹⁸ In the end, the efficiency of the Australian legal systems will depend on the attention to these provisions.

Legal Theory: The Theoretical and Normative Character of Law

The analysis of legal theories with regard to morality, their connection to other fields, and the drawbacks related to the functioning of corresponding systems allow concluding on the conflict between the theoretical and normative provisions. On the one hand, the approaches used to investigate cases seem to be more efficient when incorporating the moral aspect and addressing the actual needs of the population. On the other hand, the normative acts contradict these intentions as they are based on activists’ perceptions from different states. Therefore, the introduction of changes seems possible only by modifying all systems instead of targeting one region.

Application to the Australian Legal System

The described theories apply to the Australian legal system, and it reflects significant achievements in the area. Thus, the decision to recognize same-sex marriage is proof of morality in action.¹⁹ It can be explained by the previous possibility to get married in Australia for the second time, and its elimination through the mentioned act is a positive action.²⁰ Thus, it confirms the possibility of complying with moral considerations.

Conclusion

To summarize, morality in law is vital for establishing justice because it indicates the feasibility of modifying the Australian legal systems. This conclusion is underpinned by theoretical principles and the connection with cognate disciplines beneficial for all scholars. As a result, future research and practice should be based on the ideas of unity and coordination of actions rather than the promotion of conflicting methodologies.

Bibliography

Articles/Books/Reports

Akani, Nnamdi Kingsley, ‘Jurisprudential Doctrines on the Nature of Law and Impact on Contemporary Global Legal Systems’ (2019) 85 Journal of Law, Policy, and Globalization 1.

Anleu, Sharyn Roach and Kathy Mack, ‘The Relationship Between Sociology and Cognate Disciplines: Law’ (2009) Proceedings of the Australian Sociological Association Conference 1.

Blanco, Veronica Rodriguez, ‘The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited’ (2006) 19(1) Ratio Juris 26.

Hazard Geoffrey C Jr, ‘The Morality of Law Practice’ (2015) 66(2) Hastings Law Journal 359.

Irvine, Krin, David A. Hoffman and Tess Wilkinson-Ryan, ‘Law and Psychology Grows Up, Goes Online, and Replicates’ (2018) 15(2) Journal of Empirical Legal Studies 320.

Liste, Philip, ‘International Relations Norms Research and the Legacies of Critical Legal Theory’ (2017) The 11^th Pan-European Conference on International Relations ‘The Politics of International Studies in an Age of Crises’ 1.

Lovin, Keith, ‘H. L. A. Hart and the Morality of Law’ (1976) 21 American Journal of Jurisprudence 131.

Moulds, Sarah, ‘ Making the Invisible Visible Again: Pathways for Legal Recognition of Sex and Gender Diversity in Australian Law’ (2019) 7(2) Criffith Journal of Law & Human Dignity 245.

Perry, Stephen, ‘Beyond the Distinction between Positivism and Non-Positivism’ (2009) 22(3) Ratio Juris 311.

Skillern, Frank F, ‘ Law, Obligation, and Morality: What Is the Individual’s Responsibility?’ (1973) 52(2) Oregon Law Review 111.

Swenson, Geoffrey, ‘Legal Pluralism in Theory and Practice’ (2018) 20(3) International Studies Review 438.

Ulen, Thomas S, ‘ The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines, and the Future of Legal Scholarship’ (2004) 79 Chicago-Kent Law Review 403.

Wacks, Raymond, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 2017).

Other

Australian Abortion Law and Practice. Web.

Marriage Celebrants Programme. 

Footnotes

1. Wacks, Raymond, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 2017).
2. Blanco, Veronica Rodriguez, ‘The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited’ (2006) 19(1) Ratio Juris 26.
3. Skillern, Frank F, ‘ Law, Obligation, and Morality: What Is the Individual’s Responsibility?’ (1973) 52(2) Oregon Law Review 111.
4. Wacks, 2017.
5. Lovin, Keith, ‘H. L. A. Hart and the Morality of Law’ (1976) 21 American Journal of Jurisprudence 131.
6. Wacks, 2017.
7. Wacks, 2017.
8. Liste, Philip, ‘International Relations Norms Research and the Legacies of Critical Legal Theory’ (2017) The 11^th Pan-European Conference on International Relations ‘The Politics of International Studies in an Age of Crises’ 1.
9. Irvine, Krin, David A. Hoffman and Tess Wilkinson-Ryan, ‘Law and Psychology Grows Up, Goes Online, and Replicates’ (2018) 15(2) Journal of Empirical Legal Studies 320.
10. Irvine, Krin, David A. Hoffman and Tess Wilkinson-Ryan, 2018.
11. Ulen, Thomas S, ‘ The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines, and the Future of Legal Scholarship’ (2004) 79 Chicago-Kent Law Review 403.
12. Anleu, Sharyn Roach and Kathy Mack, ‘The Relationship Between Sociology and Cognate Disciplines: Law’ (2009) Proceedings of the Australian Sociological Association Conference 1.
13. Akani, Nnamdi Kingsley, ‘Jurisprudential Doctrines on the Nature of Law and Impact on Contemporary Global Legal Systems’ (2019) 85 Journal of Law, Policy, and Globalization 1.
14. Australian Abortion Law and Practice. Web.
15. Akani, 2019.
16. Perry, Stephen, ‘Beyond the Distinction between Positivism and Non-Positivism’ (2009) 22(3) Ratio Juris 311.
17. Swenson, Geoffrey, ‘Legal Pluralism in Theory and Practice’ (2018) 20(3) International Studies Review 438.
18. Hazard Geoffrey C Jr, ‘The Morality of Law Practice’ (2015) 66(2) Hastings Law Journal 359.
19. Marriage Celebrants Programme. Web.
20. Moulds, Sarah, ‘ Making the Invisible Visible Again: Pathways for Legal Recognition of Sex and Gender Diversity in Australian Law’ (2019) 7(2) Griffith Journal of Law & Human Dignity 245.