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Law and Morality –are they
related ?
Chapter 2
Four different elements of morality
• 1. moral rules obligate
us to act in a certain
way
• 2. some moral rules
require self-sacrifice or
risk (e.g., parent and
child)
• 3. Motives from which
a morally good person
acts
• 4. Cultivation of qualties
of character that are
praiseworthy
(VIRTUE)
Which apply to law?
• #1 – rules that obligate
us to act a certain way –
laws do this
• #2 - self-sacrifice –
author says laws usually
do not do this
• #3 – law does not
require that persons act
based upon altruistic,
rather than selfless,
motives – legislating
motives is impossible
• #4 – author says law
does not require us to
cultivate virtue
(question – do you
agree?)
NATURAL LAW v. POSITIVE LAW
• “natural law” is
considered a system of
law in its own right,
consisting of rules that
can be known by our
natural powers of
reasoning and which
are universally valid
• We will be discussing
whether there is such a
thing as natural law
• Positive law refers to
any system of law
created and enforced by
humans
• Only claimed validity is
over persons within a
particular jurisdiction
Conflict between natural law and
positive law raises some questions..
• 1. Is the rule of law best
understood as positive
law alone or the rule of
natural law (and of
positive law only insofar
as it is consistent with
natural law)?
• 2. Is any rule of positive
law that conflicts with
natural law invalid and
incapable of imposing
an obligation on us?
• 3. Are acts contrary to
natural law crimes even
though no positive law
makes them criminal?
So when we ask if there is a
necessary connection between law
and morality…
• What we may really
mean is….
• Is there a necessary
connection between
positive law and natural
law aspect of morality?
• There is significant
dispute over the
connection between
the two….
This leads to
three questions….
• Are positive laws
necessarily lacking
validity when they
conflict with natural
• Does the concept of
laws? Natural law
rule of law necessarily
theory says yes, legal
include the idea of
positivism says no
natural law? Natural law
theory says yes, legal
• Are acts that violate
positivism says no
natural law crimes
though they violate no
positive law? Natural
law theory says yes,
legal positivism says no.
Two lines of criticism of the
Nuremberg trial
• Any trial should follow
the rule of law but
Nuremberg trial did not
• Law consists of
commands of a
sovereign state and only
laws applicable to
German defendants
were commands of
Hitler
Ways Nuremburg may have violated
rule of law…
• 1. No valid legal rules
were violated (“crimes
against humanity” not a
valid law at time of event,
so “no crime without a
law” was violated)
• 2. “Crimes against
humanity” under
Nuremberg was adopted
after the event, so
violates prohibition
against retroactive
application
• 3. Judges were not
impartial, the tribunal
were judges from the
victor nations)
• 4. Selective prosecution –
what about Allied war
crimes, like Hiroshima,
firebombing of Dresden,
Soviet takeover of Baltic
States?
• 5. Crimes too vague “war
of aggression”
From this point of view….
• Nuremberg
• It was a
was not a legal political trial!
trial….
Second criticism – no sovereign laws
were violated….
• 1. Acts of state cannot
be illegal because they
are acts of the
sovereign
• 2. Obeying sovereign
orders cannot be illegal
because it is illegal not
to obey them – the
sovereign dictates what
is legal and illegal
• Query: if the positive
law of the sovereign is
not violated, what law
is violated?
• Natural law?
• “international law”?
Who decides what that
is? Is the sovereign not
sovereign?
Counterarguments
and author’s
response
• Germany had signed
international treaties declaring
aggressive war criminal
• International community had
long recognized “war crimes”
as violations of international
law
• “International law,” says
Tribunal, trumps sovereign law
• Tribunal in practice was
impartial; there were
acquittals, sentences for
convictions were reasonable
• Author’s response:
• 1. Prior to Nuremberg no
international agreement
outlawing “crimes against
humanity”
• 2. Treaties prohibiting wars of
aggression historically were
never enforced
• 3. Acts were not crimes under
German law
• HOWEVER, author says better
than summary execution or
letting them go free, and trials
gave relatively fair chance to
defend
• Also possible to make a
“natural law” argument for
trials (assuming you accept
natural law exists and trumps
conflicting positive law)
Three theories of natural law…
• 1. Natural law trumps
positive law if they
conflict;
• 2. Positive law doesn’t
have to be exactly the
same as natural law, but a
“genuine” system of
positive law must
generally respect certain
moral principles (Lon
Fuller’s “inner morality”
of law)
• 3. Positive law need not
be consistent with natural
law to be valid, but
positive law cannot be
properly interpreted and
applied without moral
judgments (Ronald
Dworkin).
Natural law history
• St. Augustine
“a law that is
not just is not
a law.” (middle
ages)
• Wm.
Blackstone
(18th century);
slavery
abolition
movement;
justifiers of
Nuremberg
• Thomas Acquinas’s system:
• eternal law – God implants laws
for proper functioning in all things
• Natural law – eternal law
applicable to humans – how we
achieve good in this world;
however, there is also a “divine
law” guiding us salvation which is
superior to natural law
• Human law – positive law created
by humans for common good of
community (if it conflicts with
natural law, it’s invalid)
Attacking assumptions of Aquinas
• 1. God exists
• #1 and 2 unproveable
• 2. God has ordained
•
#3
Reasonable
that positive law should
people DO
serve the common good
• 3. Natural reasoning
disagree about
powers lead all
good/bad,
reasonable person to
right/wrong
agree on basic
principles that
determine good/bad,
right/wrong
Lon Fuller and Fidelity to Law
• Inner morality of law
based on idea that
humans are agents that
deliberate and choose
• Rules that bypass this
capacity violate inner
morality
• Therefore, rules must give
“fair warning,” i.e., be
prospective, clear,
possible to comply with.
(note, Fuller focuses on
the “kind” of system, not
the content of the law)
• If this inner morality is
satisfied, the law is prima
facie legitimate;
“every genuine legal system
has an inner morality that
imposes a prima facie
obligation to obey its
rules”
BUT
• If law is seriously unjust,
the prima facie obligation
to obey is overridden
Applying Fuller to prior fact patterns…
• Nazi laws didn’t satisfy
• Nuremberg: because of
inner morality because
violation of inner
of blatant disrespect of
morality, defense of
legality, arbitrary system
obeying German law is
of terror operating
invalid – they weren’t
outside law, so serious
legitimate laws.
that cannot be said to
treat humans as
responsible moral
agents
Fuller on interpreting law….
• Laws should be
interpreted to
accomplish the
social purpose
underlying the
law
• Critics: What if
the underlying
social purpose is
immoral or
unjust?
Ronald Dworkin’s
interpretative
theory
• Laws are not a
miscellaneous collection
of rules but reflect an
“underlying philosophy of
government”
• Laws must be interpreted
in light of the best moral
principles that underlie
philosophy
• How do you determine
what those moral
principles are? Dworkin
says judge degree of “fit”
• 1. underlying principles
are consistent with most
of the rules;
• 2. underlying principles
provide a rationale for the
rules
• 3. where competing
principles, use “morality”
to choose which is most
important
• 4. if people disagree on
morality, must follow
one’s own conscience
Dworkin’s response to skepticism re
determining “right” moral principles
• External skepticism holds
that there is nothing
objective in the world;
• Dworkin says this rests on
false assumption that
moral judgments must
correspond to perceivable
facts or require empirical
methods – it’s a matter of
reason rather than
perception
• Internal skepticism – legal
system unjustly promotes
interests of wealthy and
privileged and
contradictory laws are
manipulated to that end
(what will be basis of
Critical Legal Studies, unit
9)
• Dworkin denies law is
contradictory or is unjust
Author asks re Dworkin…
• Should judges follow
own conscience re
moral principles or
apply society’s
principles?
• What do you think?
• John Austin – laws are commands
Legal
Divine law is God’s command enforced
Positivism by God
• Unlike Fuller Positive law is created and enforced by
and
sovereign (sovereignty is purely
Dworkin,
power, not justice or morality –
rejects
validity is the ability to enforce.
unnecessary What the law is is completely
link
unrelated to what the law should be
between
and sovereign can’t be judged by a
positive law
“higher” law
and
morality.
H.L.A. Hart – looking at law in terms of
empowerment
• Power• Primary rules are the rules creating
conferring
rights and duties (obligations)
rules (e.g.
• Secondary rules involve identifying
contract
what rules impose obligations
law) cannot
(which rules are legally valid); how
be
rules can be changed; and empower
understood
individuals to enforce rules
in terms of
commands