Nature of Law (Morality) Flashcards
influences on law
we follow moral rules voluntarily
we follow legal rules as theyre enforceable by courts
two theories of nature of law
legal positivism
natural law
legal positivism
laws are valid as theyre made by the recognised legislative power, they dont need to satisfy any higher authority.
Jeremy Bentham (legal positivism theorist)
makes distinction between what the law is and it’s merits.
‘a law which exists is a law though we happen to dislike it’
finding a law unfair/ offensive doesnt affect its validity.
John Austin (legal positivism theorist)
3 principles of command theory:
-laws are commands by sovereign
-laws are enforced by sanctions
-sovereign is one obeyed by the majority
natural law
natural law theorists reject legal positivism. instead, validity of laws depends on them being compatible with a higher, moral authority. (Plato and Aristotle on ‘goodness’)
Thomas Aquinas on natural law with Christian theology
four types of law:
Eternal Law: God’s unchanging order.
Natural Law: Moral principles derived from human nature.
Human Law: Societal laws ideally aligned with natural law.
Divine Law: Specific commands from God, found in religious texts.
legal theory (Aquinas)
Aquinas:
- Existing things seek to continue, so Natural Law opposes death (murder is wrong).
- Animals mate and raise young, highlighting the importance of life and protecting children.
- Humans, with rationality, seek truth about God and the world, leading to worship, learning, and harmony (Natural Law commands this).
legal theory (Fuller)
Lon Fuller rejected legal positivism and religious natural law theory. He believed law exists to achieve social order with general rules, outlining eight principles for the inner morality of law.
Fuller’s eight principles on inner morality of law
- General laws
- Publicly known
- Non-retroactive
- Clear
- Consistent
- Possible to obey
- Consistent over time
- Align with morality
