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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
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.
"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..."
Quoted in "A Short History of Western Legal Theory" by Kelly (1992))
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.
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.
(English philosopher and jurist born 1748) proposed the Utilitarian
principle which means that the law should create “the greatest happiness
of the greatest number”.
had little time for natural law The version of legal positivism of his
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 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
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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