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Law and morality - Legal Theory

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Legal Theory

Natural Law Theory

Natural law holds that law and morality are connected.  Law is not simply what is enacted in statutes, and if legislation is not moral, then it is not law, and has no authority.

 

In order for man-made law to be valid it must accord with the higher law.

 

St Thomas Aquinas, called such law (without moral content) a “perversion of law”.  Natural law theory asserts that there is an essential connection between law and morality. This view is frequently summarised by the maxim: “an unjust law is not a true law”.  It follows that if it is not true law we need not obey it.

 

Man made law still exists, even if Natural law holds it to be inferior

In 1534 Thomas More believed that he was bound be a higher law (God's law) to a greater extent than the man-made law and was executed.  More refused to accept that Henry VIII and Parliament could usurp papal authority by declaring the king the head of the Church.

 

Natural law theory holds that, man-made law is a lower form of law

Before the Christian philosophers, the classical Greek philosophers considered man-made law to be inferior to the laws of nature.

 

Although the laws of nature decreed that people should live in communities, the rules people created to regulate those communities were man-made and subservient to the laws of nature.

Cicero said,

"True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. ... We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times..."

"De Republica"

Quoted in "A Short History of Western Legal Theory" by Kelly (1992))

 

Positivism

Positivism emphasizes the separation of law and morality. According to legal positivists, law is man-made, or “posited,” by the legislature. Where natural law theorists may say that if a law is not moral there is no obligation to obey it, by appealing to moral or religious principles, but positivists hold that until a duly enacted law is changed, it remains law, and should be obeyed.

 

Legal positivism regards law as a system of clearly defined rules, the law is defined by the social rules or practices that identify certain norms as laws. Jeremy Bentham (English philosopher and jurist born 1748) proposed the Utilitarian principle which means that the law should create “the greatest happiness of the greatest number”.  Bentham had little time for natural law  The version of legal positivism of his pupil, Austin was based on the notion that the law is the command of the sovereign backed by the threat of punishment.

 

Hans Kelsen (Austrian lawyer and philosopher born 1881) Kelsen's version of Legal Positivism was that there is no necessary connection between law and morals, and that law did not require moral validation to be legitimate.

 

Legal Realism

Legal realism is the view that that we should understand the law as it is practised in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises.

 

For legal realists such as Oliver Wendell Holmes who wrote "The Common Law" in 1923, if the law were merely a system of rules, we would not need lawyers conducting adversarial  proceedings, because judges could just apply the rules. In fact, judges have discretion with which they can decide a case in a number of ways, and factors such as the judge’s temperament, or social class, or political ideology, may determine the outcome.

 

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