Sanction Psychological Inducement For Compliance Of Law Philosophy

Essay add: 21-10-2016, 18:47   /   Views: 8

Austin said law is a command given by a sovereign backed by sanction. The term sanction connotes the driving force behind the compliance of law by the society. That compliance can be because of reward or fear of punishment. Sanction is said to be that compelling force which restrain citizens from encroaching into the domain of such practices which is detestable by the society. But the moot point which is being discussed in this article is whether sanction is indispensable for the implementation of law. The attempt is made to prove that it is the sanction either violent or in form of reward that is the driving force behind the compliance of law by citizen.

Introduction

"…God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment". [] 

In the long march of mankind from the cave to the computer a central role has always been played by the idea of law - the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it is large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these are hunting Animals, growing food or simply making money.

Sanctions, or rewards and punishments, are function of society and therefore connected with justice and law. Their purpose is to promote the common good by encouraging goodness and discouraging evil: punishment is said to this either by way of retribution, or by deterrence or by correction, or all three taken together. [] Much the same can be said, mutatis mutandis, for reward.

At the turn of the nineteenth century, the English philosopher John Austin elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment. As Austin puts it

"The evil that will probably be incurred in case a command is disobeyed or in case a duty be broken is frequently called a sanction or an enforcement of obedience. Or the command or duty is said to be sanctioned or enforced by the chance of incurring evil.

Considered as thus abstracted from the command and the duty which it enforces, the evil to be incurred by disobedience is frequently a punishment. But, as punishments, strictly so called are only a class of sanctions, the term is too narrow to express the meaning adequately. To the existence of command, a duty and a sanction a violent motive to compliance is not requisite" [] .

Sanction is derived from the word sancire and can be defined as -

Sancire- to confirm, to forbid under pain, punishment, "that part of the law which inflicts the punishment upon disobedience is called its sanction, from sancire, to confirm; because it is that which gives the enactment full force and authority, and chiefly preserves it from being violated by perverse men, who would disregard the true ground of obedience. [] 

Human nature being what it is, fear of sanction is going to continue to be the most important factor for ensuring observance of duties by citizens.

Professor Olivercona has put forward the thesis that obedience is a psychological reaction to the ever present of legal enforcement and he goes on to assert that even moral ideas are moulded in this way. [] Everyone is aware from his or her infancy of the consequences of breaking law, and temptation to transgress brings into play this inhibiting fear of sanctions. It is not in the human-makeup to accommodate such tensions indefinitely and it tends to be removed by a psychological adjustment that gets rid of fear by an inward acceptance of conformity as based on rightness [] 

Professor Kelsen has said law in its static dimension consists of norms related to human behaviour in the following way: Certain states of affairs (generally human acts or omissions) are conditions for the application of coercive sanctions. [] Offenses (or "delicts") are simply the human acts or omissions that trigger a prescribed sanction. From Kelsen's positivistic perspective, an agent's act or omission constitutes a legal offense if and only if there exists a valid norm in that agent's positive legal order holding that a sanction ought to be applied to her because of her act or omission. Legal norms hold that officials ought to administer sanctions, be they criminal punishments or civil penalties, deprivations or forced actions, under certain conditions. Kelsen argues that the threat of palpable coercive action by legal officials is what distinguishes a legal order from any other system of normative prescriptions, such as a moral system. Whereas moral norms address many of the same kinds of human behaviour as legal norms, only legal norms regulate human behaviour by specifying sanctions to be performed by legal officials. Also, Kelsen distinguishes between law and morality by arguing that legal norms are valid only if their promulgation is authorized by other legal norms, regardless of whether they cohere or conflict... [] .

In this part of research we see how different scholars differ from each other in the matter of sanction but all of them identify sanction as a necessary evil.

Now we will analyse what does sanction aim at. Here we will be using punishment as synonym for sanction.

The people in society can be divided into two groups -criminal and non- criminals. Here, people don't have any problem with non- criminals but criminals are the point of discussion, people fear them and as Durkheim says punishment is the reaction of the society against a crime. He explains that if punishment is a reaction of the society against the offenders then it is generally in the form of an outrage or anger thus rather being reparative or reformative becomes punitive. This approach of the society towards the criminals is what makes us treat them as outcasts and treated as a deviant from the social norms. [] 

Austinian notion of sanction-

The Austinian picture emanates with the question of legal obligation. Like his jurisprudential prdecessors and successors, Austin recognized the importance of a satisfactory account of legal obligation [] . And accounting for legal obligation is important because if we understand legal directives simply as descriptive propositions or abstract prescriptions we miss what distinguishes law from other normative enterprise [] . It is true that law tell us what to do, but it is also true that most works of moral philosophy tell us what to do. But the fact that the enterprise of both law and moral philosophy are essentially prescriptive does not mean that the prescriptions of English law and the prescriptions in Kant's metaphysics of morals have the same status for our practical reasoning. A successful account of legal obligation therefore must explain how law purports to do more than merely enlighten us about the obligations that come from elsewhere.

The basic objective behind the Austinian philosophy is that the legal obligation must carry with it a sanction to act as commanding force for its compliance. In seeking to explain these legal obligations, and thus to explain how law can be binding, Austin in the province of jurisprudence determined and then in lectures on jurisprudence [] insisted that they arise because the law threatens its subjects with sanctions should they not comply with law's directives. As Jules Coleman and Brain Leiter describe Austin's central point, "without sanctions, commands would really be no more than requests" [] .

Sanction in international law

There is no unified system of sanctions in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal. Within the United Nations system, sanctions maybe imposed by the Security Council upon the determination of a threat to the peace, breach of the peace or act of aggression. [] Such sanctions may be economic, for example those proclaimed in 1966 against Rhodesia [] , or military as in the Korean War in 1950, [] or indeed both, as in 1990 against Iraq. [] 

Coercive action within the framework of the UN is rare because it requires co-ordination amongst the five permanent members of the Security Council and this obviously needs an issue not regarded by any of the great powers as a threat to their vital interests. Korea was an exception and joint action could only be undertaken because of the fortuitous absence of the USSR from the Council as a protest at the seating of the Nationalist Chinese representatives.

Apart from such institutional sanctions, one may note the bundle of rights to take violent action known as self-help. [] 

This procedure to resort to force to defend certain rights is characteristic of primitive systems of law with blood-feuds, but in the domestic legal order such procedures and methods are now within the exclusive control of the established authority.

States may use force in self-defense, if the object of aggression, and may take action in response to the illegal acts of other states. In such cases the states themselves decide whether to take action and, if so, the extent of their measures, and there is no supreme body to rule on their legality or otherwise, in the absence of an examination by the International Court of Justice, acceptable to both parties, although international law does lay down relevant rules.

Accordingly those writers who put the element of force to the forefront of their theories face many difficulties in describing the nature, or rather the legal nature of international law, with its lack of a coherent, recognized and comprehensive framework of sanctions. To see the sanctions of international law in the states' rights of self-defense and reprisals [] is to misunderstand the role of sanctions within a system because they are at the disposal of the states, not the system itself. Neither must it be forgotten that the current trend in international law is to restrict the use of force as far as possible, thus leading to the absurd result that the more force is controlled in international society, the less legal international law becomes.

Since one cannot discover the nature of international law by reference to a definition of law predicated upon sanctions, the character of the international legal order has to be examined in order to seek to discover whether in fact states feel obliged to obey the rules of international law and, if so, why. If, indeed, the answer to the first question is negative, that states do not feel the necessity to act in accordance with such rules, then there does not exist any system of international law worthy of the name.

Another significant factor is the advantages, or 'rewards', that may occur in certain situations from an observance of international law. It may encourage friendly or neutral states to side with one country involved in a conflict rather than its opponent, and even take a more active role than might otherwise have been the case. In many ways, it is an appeal to public opinion for support and all states employ this tactic.

Conclusion

From the preceding pages it is clear that sanction is indeed a psychological inducement for compliance of law. A person follows the law, or performs his duty to save himself from the wrath of legal sanction.

In theology, if we analyze, we will see sanction has been given great importance. If we talk of Islam, a crime is synonymous to sin and a sin is very harshly punished. In Islam, a sin against an innocent individual is a sin against whole humanity and therefore sin against Allah (SWT) and therefore is punished severely.eg, if a man commits rape in land of Islam (Dar-Ul-Islam) his private part would be amputated as a punishment because rape is considered to be one of the greatest sins. Apart from this material punishment, the fear of hell is also a sanction to prevent a believer from committing sin.

In Hinduism, if one commits crime or sin, he will not achieve Moksha and in his next birth he will be born as an animal or an insect.

Thus we see that sanction is non-separable part of any law as it forces an individual to comply with law and perform his duty. All the penal laws of world, prescribes sanction against violation of law. Even if a law prescribes any reward it can be termed as sanction as it also drives a man to comply with law. Therefore it is proved that sanction is indeed a psychological inducement for compliance of law.

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