The Written Word v Morality

This week in Jurisprudence we started on the topic of legal positivism. For those who are not so legally inclined, this is a particular approach to interpretation of laws. Basically, it means that a law should be interpreted as it was posited or originally written. The opposite of positivism is natural law, which is very much based on morals.

To put this all into perspective, we discussed the case of a woman in Germany during the Nazi regime. For whatever reason, she became sick of her husband and one day when he complained about the Nazis she reported him, knowing very well that he would be severely punished. Most likely killed.

Instead, the husband was sent to fight on the Eastern front- a fate seen as worse than death for some- and miraculously survived the war.

The issue arose later on, when the Nuremberg trials were taking place. The question was whether the wife could be convicted of attempted murder. She would have argued that she couldn’t on the basis that she had been adhering to the law at the time, Nazi law. On one hand, this would have made sense but it would have undeniably set an alarming precedent for the rest of the trials. Were the officers and soldiers that operated the concentration camps not following the word of the law?

It all comes down to the approach taken. I, myself, tend to favour positivism as a great number of problems arise when morality comes into conflict with the written law. I’m not saying that morality is not important but its relationship with the law should be heavily restricted when morality is such a nebulous concept. In the past homosexuality was seen as immoral and was, therefore, deemed to be illegal. This just demonstrates how liable morality is to change.

It’s situations like that, when the consequence of ‘morality’ is to infringe the rights of one particular group of people, that make me think that positivism is by far the better of the two approaches. A legislature can be as descriptive as it wants with it’s law making but when it comes down to interpreting legislation with a view to what is seen as ‘moral’ then we run the risk of only representing the interests of the majority at best and completely alienating the minority at worst.

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Love/8th

 

                                                        (Source: http://www.newstalk.com)

The 8th amendment. It’s a hot topic at the moment, especially with the General Election upon us. No matter what a candidate’s views are on the matter, you can be sure that they’ve got something to say… just like everyone else in the country.

As a law student, it is impossible not to have a strong view on the matter. The current position in Ireland- that a termination is only legally permissible when the pregnancy poses a real and substantial risk to the life, as opposed to the health, of the mother or if there’s a real risk that the mother will commit suicide if she continues with the pregnancy- is subject to much criticism.

One of these critics is Labour’s Ivana Bacik, who is of the firm opinion that nothing less than the deletion of Article 40.3.3 from the Constitution is a societal failure. It’s hard for me to disagree with her views.

Sitting in a lecture hall, hearing all about the law on this area, is probably the most frustrated I’ve ever been in my academic career. If you study law you know that you have to attempt to put your own views to one side because the law is not subjective. But this is a topic so controversial, so delicate, that that was almost completely impossible. I left that lecture angry, dissatisfied. I wanted change.

For me, this is the equality referendum all over again.

When I voted in favour of the of allowing marriage regardless of sex, it was because I don’t think it’s for me to decide how other people live their lives. If a person wants to get married, be it to a man or a woman, that’s their choice and they’re as entitled as anyone to make it. The same goes for the right to terminate. Even if it never affected me, I don’t think it’s for me to decide how other women live their lives.

Whether or not a move towards a referendum will be made anytime soon remains to be seen but there’s no denying that there’s a strong desire, especially amongst the young liberals, for change to come.