Does Law Have To Be Moral ?

Jurisprudence = legal philosophy

• Philosophy of law

• Studies law as a theoretical subject

Schools of thought within Jurisprudence

Legal Positivism

• Rejects the notion that the law has any kind of substantive moral norms for its existence.

• An unjust law can still be law. No moral conditions for law’s existence exist.

• There may be a connection between law and morality, however morality is not a condition for the existence of law.

eg. The Nuremberg Laws - 1935 , Jim Crow Laws (segregation laws in the USA; 19th - 20th century)

John Austin

His theory of law is separate from that of morality and depends heavily on the existence of a sovereign for the creation law.

• This can become problematic on a international level as it poses the question of who's sovereign in a whole world of nations.

• Austin's theory also requires for a form of law enforcement to exist.

1. Sovereign Command Theory

There are no external influences on law except the sovereign, only the sovereign has the power to influence the law.

2. The Separability Thesis

Law is dependent on nothing else for its existence apart from the command of the sovereign. There is no concept of justice, fairness, equity or anything else that influences the law.

Carl Schmitt

• He was a crown jurist of the Third Reich influenced heavily by J. Austin’s concept of sovereign and supreme power.

• His opinion was that law is an instrument to be used to defeat one’s enemies.This notion is appealing to authoritarian governments in general.

Philosophy of Natural Law

• Originated in Greek Philosophy and developed with the influence of Christianity.

• There has to be a certain morality behind law.

• It allows for morally neutral laws, eg. traffic laws. These laws don't necessarily have a moral value prescribed to them.

The Context of Ancient Greece:

Philosophy of Plato:

• He claimed that for law to be law, it had to fulfill one of the 3 transcendental values : truth, justice and beauty.

Modern versions of Natural Law:

• Claim to reject religions connotations.

Modern Natural Law philosophers and their main ideas

Lon L. Fuller: Focus should be on procedural fairness and openness.

John Finnis : A law is law if its norms are aimed at human flourishing.

Alternative Theories of Law

• most respond to Legal Positivism and/or Natural Law

• Durkheim’s Theory of Law

• Weber’s Theory of Law

• Marxist Legal Theory

• Law and Justice

• Law and Politics