LAWS110: Concept of Law 5

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.

Recap of Natural Law vs. Positivism

• 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.

Rule of Law

• 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'.

Types of Natural Law

• 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.

Examples from German Law

• 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.

Distinction Between Natural Law and Positivism

• 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.

Recommendations for the Essay Assessment

• 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.

Conclusion

• 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.