Natural Law Theorists And Positivist Theorists

In the novel Jasper Jones by Craig Silvey it is revealed that justice and the law are not the same things. The law can be defined as a set of rules and regulations to be followed and justice can be defined as just behaviour or treatment. The law is meant to ensure that justice is always present but this is not always the case as seen in Jasper Jones. In the novel, the law is not used for justice but is rather used for prejudice, in order for characters of the novel to find justice they must do so outside of the law and to find justice you have to take the law into your own hands.

there are two types of laws: just and unjust." He also explains that he " .

King categorizes law into two types: just and unjust. He describes a just law as a “man-made code” that falls in line with moral law while an unjust law is one that deviates from moral law. King claims that just laws can uplift people while unjust ones degrade them. In stating these ideas, King provides his audience with his own definition of what laws are and what they can do. The reader can now apply this definition to attain a better understanding of King’s ideology and better connect with King’s larger purpose of the letter. King also examines laws that in method are fair but in practice are oppressive. This helps make his definition be more complete by presenting a multitude of ways a law can be unjust. He shows that laws can be unjust in writing and in application. King explains his criteria for just and unjust laws in order to move his argument forward in answering the criticisms of his fellow clergymen.

However, he then distinguishes between just and unjust laws, insisting that an individual has both a right and a responsibility to break unjust laws. He defines just laws as those that uphold human dignity, and unjust laws as those that “degrade human personality.” Unjust laws, he argues, hurt not only the oppressed, but also the oppressors, since they are given a false sense of superiority.

As per above analysis, therefore, I strongly agree with assertion that laws can be classified as just and unjust. Yet, a far more important issue to talk about later is what people should do in face of just of unjust laws.

King then differentiates between just laws and unjust laws. By quoting St. Augustine and St. Thomas Aquinas, he states that unjust laws are not considered laws.

Martin Luther King used the same idea of unjust laws to justify his actions and nonviolent campaigns. He used this idea to answer the question of how he can support the breaking of some laws, but not others? His simple answer was that there are two types of laws, just and unjust, and "an unjust law is no law at all." (80). He goes on to quote St. Thomas Aquinas, ."..Any law that uplifts personality is just. Any law that degrades human personality is unjust." (80) and says that any individual that breaks an unjust law and accepts the punishment of imprisonment actually has the "highest respect for the law." (81). King makes a very strong point in distinguishing just and unjust laws to advocate his actions, just like Stanton and Anthony do in their address.

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

The use of just laws was first abided by Dr. King in his “Letter From Birmingham Jail.” In this letter, he mentions the necessity of just laws in society and how individuals are morally obliged to follow them. He also makes a clear distinction between “just” and “unjust” laws, further advocating his beliefs. Dr. King defines the two different laws in his interpretation of what they actually mean in society. A just law is a human-made code that squares with the moral law or the law of God. In other words, a law that can uplift the personality of an individual is a law that is just. Also, citizens also have their moral responsibility in a constitutional democratic society to obey and abide by the laws of the country. In comparison to just

These rights are said to be inscribed in the hearts of all men (Seagrave 2011). Natural law is God’s law that every man can know.

A law is said to be just when it is ordained for the common good, does not exceed the power of the lawgiver and any burdens put on the subjects are done proportionally and equally and aim for the common good (Aquinas in Dimock, ed., 2002, p.20). In comparison an unjust law can be contrary to the human good and additionally opposing to the divine good. A law can conflict with the human good in one of three ways; either through its end, author or its form. A lawmaker issues an unjust law according to its end when he “imposes on his subjects burdensome laws, conducive not to the common good, but rather to his own cupidity or vainglory” (Aquinas in Dimock, ed., 2002, p.20). If a lawmaker imposes a law that favors the leader but at the same time imposes unfair burdens on the whole of society, it can be assumed that he is working for his glory and selfish desires.

Descriptions of the Right of Revolution also differ in whether that right is considered to be a natural law (a law whose content is set by nature and that therefore has validity everywhere) or positive law (law enacted or adopted by proper authority for governing of the state).

Law and morality work together to guide our behavior; while law does it by punishing us if we do something wrong, morality does it through incentives. In their articles, both H.L.A Hart in “Positivism and the Separation of Law and Morals,” and Lon Fuller’s reply to professor Hart in “Positivism and Fidelity to Law,” discuss the concept of law post world war II Germany and their re-imagining of natural law as put forth by Gustav Radbruch’s theory. In this paper, I hope to show how both law and morality is needed to create just rules, more specifically drawing from the “grudge informer” case mentioned in Hart’s article. First, I will explain the dilemma of the “grudge informer” case and the contradicting theory laid down by Radbrunch’s.

Natural law theorists believe that all law must be morally justified if it can be legitimised as law at all. Legal positivism means the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have otherwise done so. (Hart, DATE)

In “Statutory Lawlessness and Supra-Statutory Law” Gustav Radbruch talks about the Radbruch Formula that states extreme injustice is no law. (p.126) Radbruch is against positive law because in a situation of conflict between legal certainty and justice, positive law takes precedence even when the content is unjust and fails to benefit the people. (p.132) This is one of the main reasons why Radbruch criticizes positive law, it fails to create justice for the people. Another reason is that according to Radbruch, positive law is incapable of establishing validity of the statutes. Legal validity states that for a law to be valid, it must be given a rule of recognition, which the officials, the society and its members must accept. Members should have the ability to change the laws that govern them and since the positive law does not allow this, certain members of the society are subject to unjust laws, and they cannot do anything about it. For Radbruch, the idea of law comprises of three things; the purpose of the law in serving the public benefit, justice, and legal certainty. Out of these three, Radbruch emphasized that legal certainty has the most importance.