111obeña, Ronielyn - MidTermPaper

Bicol University College of Law
Bicol University Main Campus, Legazpi, Philippines
Ronielyn O. Obeña Philosophy of Law

JD-1A
Scale of Justice
Justice is decided by the absence of injustice; this may sound ridiculous, but it is true that when there is
a presence of injustice, the human sense of justice is awakened; nevertheless, how can we determine
injustice? For others, justice may appear to be when people believe that someone should be punished in
proportion to the offense that he did. It is giving each person his or her due, but what is the
measurement used in order to properly attain it? Justice is abstract and it may depend on how each of
us interprets it because an individual sense of justice can also be influenced by the things that surround
them it can be his/her environment, the culture, the religious teachings, the interactions, etc. For
instance, justice is served through sentencing a criminal with the death penalty which is used as the
strongest punishment to discourage would-be criminals from unlawful acts whereas in some countries
this is unjust and considered as over the boundaries as this violates the right to life of a person which
said to be the most basic human rights. Our reasoning skills are challenged when we are in the face of a
moral dilemma choice between two evils where morality and legality are the primary considerations in
making logical decisions but not all considered as moral is legal. Is the level of morality necessary and
should be measured in order for the law to be valid? Is justice attained by just considering following
what was written in the statute alone? These are some of the questions that arise in the case at bar
where as a judge I am placed with the burden to give light to these questions.
The case sought to relieve arises with the question as to whether or not the woman who procured
the false imprisonment of her husband should be penalized under the German Criminal Code. It is
important to consider in making a judgment the fact that this woman during her husband’s absence, has
engaged in an adulterous relationship. This woman used the statute that was promulgated at that time
and claimed that her actions were legal. It’s easy to say that this woman should be punished for using
the law as a tool to attain her hidden plans, but she has a strong defense of using Nazi Criminal
provisions under the 1934 and 1938 statutes. The choice being weighed here is either to let the woman
be free from prosecution because her actions were legal when she performed them or to overturn those
legitimate laws by introducing a retroactive statute and potentially creating a precedent that where
made to punish people for their offenses during Nazi Regime. We must be reminded first that laws are
created either for the majority or for the few, I am faced with putting into scale the individual rights and
the majority rule, it seems like this woman killed her husband and the means that was used is the
statute. The statute used as defense clearly speaks for itself that it is not based on the rule of law for the
reason that the authorities seemed protected by these statutes as it penalizes any person who made a
spiteful and provocative statement to them regardless of whether the act is done in a public or in private
settings and these authorities are also exempted with the liabilities. Punishing retroactively is a tricky
choice because it’s difficult to justify it when the accused was just following the law at that time
regardless of whether it is moral or not. Obviously, her act to report her husband to the authorities is not
rooted in her strong will as a faithful citizen to uphold the law of the land but rooted in her immoral
desire to preserve her illicit relationship with another man. It is really doubtful that a wife would trade
the life of her husband if well in fact she has a choice not to do so. I am faced again with another
question as to whether the legitimacy of a law depends on its moral value. From the point of view of a
positivist, the woman’s actions were valid because a statute may be harsh but it is what it is (dura lex
sed lex). Then, we can say that if the law says that it’s legal to kill anyone who wears orange shirts
today then anyone could be a killer but in the eyes of the law, these killers are innocent, to what extent
should a statute still be legal? What is the scale used by the positivist? According to H.L.A Hart,
morality is not essential to have a legitimate character this means that the immoral nature of Nazi law
doesn’t detract from the legal validity it had and when we invalidate this law by just saying that it’s too
evil it encourages an unrealistic optimism that we can maintain all of our moral ideals without making
any sacrifices or compromises. Indeed, Legal cases are not that simple because oftentimes we’re faced
with a moral dilemma, the choice between two evils where there is no good choice but we can still
weigh what is the lesser evil, applying to the case, the woman is left with the choice as to whether not
to report her husband to the authorities although he violated the law- lesser evil or to report him and
eventually be sentenced to die -a greater evil, what influences her to chose the greater evil is choosing
what will be more beneficial to her. The problem that I see in this case is not about the immorality of
the woman but the validity of the law which an interpretation of it is a great consideration, the problem
here is the spirit of the law had been replaced with the sound perception of the people. According to
Fuller, a naturalist philosopher, instead of arguing about individual laws, we should shift our focus to
the legal process and legal system. A genuine legal system must have internal morality which is the
morality of the laws’ procedural structure. Some of the necessary factors to be considered are whether
the Nazi criminal provisions possess clarity for the people to know what the law truly means in which I
think this is where the said statute fails as I mentioned that it is merely based on the sound perception
of the people, the law also must be generally available and publicly published so that people know how
to follow the law and criticize it if they need to- which is another failure for the Nazi statute where it
prohibits the people to criticize what was written in the law. The possibility of compliance is another
factor of a genuine legal system which means that laws could only require behavior that is actually
possible. Laws should also not change abruptly or frequently, here the Nazi Criminal was centralized
on the Hitler government

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Bicol University College of Law

Bicol University Main Campus, Legazpi, Philippines

Ronielyn O. Obeña Philosophy of Law

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