LAWS110: Concept of Law 3

Concluding the Chapter on Law

The class aims to finalize discussions on the concept of law, focusing on natural law and positivism.
Importance placed on understanding morality's role in law.

Positivism: Law is a human creation; law exists solely as it is created by humans.
Natural Law: There is a moral component in law; law must adhere to certain moral principles.
Reference made to the Nazi wife case in relation to moral decisions made by judges.

Concept: Law must pass a 'moral test' to be considered valid.
Types of morality tests vary widely among legal scholars.
Natural lawyers argue that law must adhere to procedural fairness and just practices.
- Procedural Natural Justice: Fuller’s view that laws should be created through fair processes.
- Criteria for law's legitimacy includes being clear, public, and non-biased.
- Violations of procedural justice could exclude laws from being deemed 'valid'.

Formal Natural Law: Laws need to follow certain procedures but may not ensure the outcome is good (criticized for not preventing bad laws).
Substantive Natural Law: Laws must align with certain moral fundamentals (e.g., prohibiting slavery, torture). It suggests some laws can be so wrongful that they may not be followed.
- This evokes a moral obligation for judges and citizens to resist unjust laws.

The Basic Law in Germany emphasizes human rights and includes a provision for citizens to resist. This reinforces the concept of substantive law.
Guidelines in military orders allow soldiers to disobey immoral commands (e.g., actions that violate human dignity).
The legal framework has evolved post-Nazi regime to prevent the enactment of inhumane laws.

Positivist perspectives view law separate from morality, while natural law proponents insist law must reflect moral principles.
Distinction recognized in procedural versus substantive rule of law discussions, emphasizing significance of moral considerations.

Emphasis on clear responses to questions utilizing provided class materials.
Encourage use of examples from lectures to support arguments, while adhering to structural requirements.
Students advised to provide a balanced argument, considering counterarguments where necessary.

Core concepts explored include formalism, functionalism, natural law, and positivism.
Clarification on categorization of theories, and guidance provided on handling contrasting legal philosophies in essays.