GOOD AND BAD LAW

What is a ‘good law’

a law that accords with the natural law

What is the ‘natural law’

fundamental rules and principles of human co-existence

what is ‘human made law’

laws created by authorities, acts of parliament or court judgements

NATURAL LAW: What is Thomas Aquinas’ primary principle of reason?

‘good is to be done and pursued and evil avoided’

some universal moral principles bound people, good law must stem from key underlying principles

NATURAL LAW: What are Aquinas'‘ 4 requirements for valid law?

1. law is an ‘ordinance of reason’ - flow from natural law principles

2. laws must be made for the general good

3. laws must be approved by community leader

4. must be promulgated to the people

NATURAL LAW: What are the moral principles that John Finns argues should underpin the law? (Natural law and natural rights 1980 2nd end 2011)

SECULAR UNDERSTANDING:

1. life

2. health

3. knowledge

4. friendship

   1. religion

NATURAL LAW: what are LON FULLERS criteria for valid law (‘the morality of law’ 1964)

1. general

2. promulgated

3. prospective

4. clear and intelligible

5. free of contradictions

6. relatively constant

7. possible to obey

HUMAN LAW: What is its purpose?

society can’t function with just broad natural principles

provide specific rules and fill in the gaps - sentencing for crimes

HUMAN LAW: What is AQUINAS’ view on human law being binding in conscience

human law not in conformity with natural law is an unjust rule enforced by a court - NOT BINDING

HUMAN LAW: What is Blackstone and Radbruch view on human law being binding in conscience?

Human law not in conformity is NOT A LAW AT ALL - not binding in conscience

POSTIVE LAW: What did JOHN AUSTIN distinguish between in ‘province of jurisprudence determined’ 1832

positive law - the law

positive morality - things we call ‘the law’ - honour, fashion

REJECTED THE ROLE OF NATURAL LAW

POSITIVE LAW: What did John Austin argue about positivism

laws can be identifies by virtue of being validly created, not by moral worth, morality might influence the sovereign in how to shape laws and compel people to obey them P

POSITIVE LAW: What is John Austins ‘command theory’

law is a command issued by the sovereign, backed up by a sanction which they habitually obey

POSITIVE LAW: What is Hobbes arguement

denied the need for natural law

diversity = conflict

morality doesn’t determine a valid law, law is justified when the sovereign provides order

POSITIVE LAW: What was HARTS opinion on rules? (POSITIVISM AND THE SEPARATION OF LAW AND MORALS 1957, 71 HARVARD LAW REVIEW 593)

rules are valid regardless of their inherent moral worth, moral principles cause too much uncertainty and judicial discretion

POSITIVE LAW: What was HARTS main concern

morality might be wrong, law must be certain and predictable

POSITIVE LAW: How does RONALD DWORKIN distinguish between a rule and a principle

rule - all or nothing, created by enactment

principle - carries weight in between rules, inferred from legal practice

POSITIVE LAW: what does Dworkin argue judges must do

must reach a judgement that provides the best fit with legislative and judicial rules, unwritten principles of common law and equity

must reveal the law in its best moral and political light

What is the main difference between positive and natural law

positive - based on logic and mathematics, certain and predictable

natural - based on vague moral precepts of the Catholic Church

How does GUSTAV RADBRUCH argue law looses its validity?:

when law and justice are contradicted to an intolerable level, justice is not aimed for

CIVIL OBEDIENCE

What is the requirement for defying a law?

agreement on what makes a good or bad law

needs moral justification