Critically evaluate the proposition that 'lex iniusta non est lex'.

Name: Mandeep .K. Poonia

Seminar leader: Sylvie Delacroix

Seminar group: 24

Module: LW307

Word count: 2,055

Critically evaluate the proposition that ‘lex iniusta non est lex’

The principle of ‘Lex iniusta non est lex’ is defined as unjust law is not law, it is the standpoint of natural law theory. The notion that lies behind this principle is that for law to be law it must be moral, any law that is immoral is not considered to be law. The main area of law which morality has an influence on is the criminal law. Some things are derived from general principles of natural law by way of conclusion e.g. ‘One must not kill’, from this principle it has also been derived that ‘no one should do harm to no man’1 . The theory of natural law attaches directly to justice, hence if someone tries to create a law that is evil it will fail to have an effect. It maybe questioned by people in society what role morality plays in law since the powerful individuals in e.g. politics decide what the law should be, but the law is present to maintain social order when conflict exists between individuals. Legal norms are compared to standards, these have been described as ‘higher laws’ that have been evolved from divine revelation e.g. religious texts or human nature. It is a widely accepted viewpoint that morals exist in individuals innately, in other words morals are perceived to exist naturally in all human beings. Morals have been defined as a set of rules to be followed by individuals. Morality is concerned with beliefs, this may mean that religion plays an important role of influence. However if religion influences morals this means a set of variant morals would exist in different cultures. Morals also vary from one individual to another because it is so difficult to generalise something like morals to such a diverse world. Law and morality together specify how people should behave, this relationship is essential. Morality is necessary for law, but law is not necessary for morality, this relationship happens to exist by chance although it does not need to exist. There is no clear division between the notion of law and the notion of morality, there are some laws that depend on the moral standards of humans. This means that some norms have power of authority in the content of morals even though no convention that makes morals a criteria of legal validity. Moral views have an influence on law making, as society changes the law also does to keep up with the opinions of a changing society, e.g. issues of legislation of abortion (Mckay v Essex AHA, 1982) and issues of euthanasia (Airedale NHS Trust v Bland 1993). The two theories have also been described as being independent logically of each other, a theorist can deny natural law theory of law but still hold a natural law theory of morality. The theoretical point of law is to reproduce the demands of morality, it is the laws aim to enforce morally valid.

morals that have a cultural consensus. If a norm of society does not conform to the natural law it is not termed to be legally valid, therefore the state is committing a wrong by enforcing a norm against citizens of the society.

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Two types of natural law exist, the first is a theory of morality. Moral propositions have an objective standpoint, meaning that morals can be objectively true or false. Moral objectivism has been equated with moral realism, Moore 1992 ‘the truth of any moral proposition lies in its correspondence with a mind and convention independent moral reality’. Therefore natural law moral theory is committed to the objectivity of moral norms. The second theory advocates that standards of morality are entailed by nature of humans. Aquinas recognises that humans have a rational nature and this is what defines moral law. The most famous theory of natural law came from a Greek writer by the name Cicero (106-43 BC), he advocated that if a law agrees with nature then it is true, he described that it could be ‘…of universal application, unchanging and everlasting’. 2 His view of criminals is that they are denying their own human nature since our human nature does not allow us to harm people. Natural law does not change over time, its principles always remain the same, even from one society to another they do not change, therefore everyone in the world has access to these standards of this higher law. Cicero has been criticised because he never gave a definition of ‘natural’ in ‘natural law’, as two definitions could be inferred that the standards derived from ‘human nature’ e.g. our ‘purpose or that they were expressed in the physical world that we live in'. Early Christian writers believed that a divine being e.g. God set out commands for humans to obey as part of their everyday lives. This notion was similar to classical writers but the God they referred to had a passive role in human nature. Many writers have developed theories of natural law but the theorist who has had the most influence by taking a more traditional approach is Saint Thomas Aquinas (1224-1274), he offered a more systematic moral approach. He distinguished four types of law: two of these were natural law and human (positive) law. Positive laws that are just are binding in conscience. 2b The phrase that is being discussed in this essay has always been paired with Aquinas’s theory but he never used the phrase. It has been pointed out by Austin that the phrase that all unjust laws are not law is too harsh, in some cases when a law is perceived to be unjust it only means that in that certain law the same moral force is not present and is not consistent with the ‘higher laws’. It can be said that the early classical writers main concern was not to giving a scientific analysis in terms of society, whereas this is exactly what legal positivists are trying to do. Positive law is derived from natural law, it claims that law and morality are in two separate spheres and that a law is only valid when it has been established by a society in correspondence with the procedures identified by that society, hence humans make their own laws. The definitions offered by Aquinas and Cicero are very dated, their approach to analysis may not have been systematic and it is very difficult to define whether or not laws are valid.

Bentham supported the idea of legal positivism, his belief was that law is an instrument of social change and has the function of affecting the future instead of always being retrospective. Legal positivists try and detach law from morality, the reasons for this is that they believe morals just confuse laws, hence making it even more difficult to give society justice. It may be understood in terms of that whatever the law states that is what must be obeyed. Natural law theory was hotly debated especially after World War II because at this time many people had been part of fascist regimes, hence

committed many atrocities that at the time of the war had become legalised through the

passing of statutes by the government. After the regimes began to decline in power and collapse and the war began to end the victorious allies wanted to prosecute the Nazi’s through legal trials in courts. The Nazi’s relied on the fact that the laws were legal at the time that the crimes had been committed so they could not be punished since the law had allowed those types of crimes to have legal backing. A case which hinged on natural law theory was a Nazi case: 27th July 1949, Oberlandesgericht, Bamberg, 5 Suddeutsche, in this case a woman in Germany who wanted to get rid of her husband decided to denounce him to the authorities for making insulting comments about Hitler whilst he was at home on leave from the army. His wife was under no legal duty to report his acts. Also a statute had been created making his comments illegal. The husband was arrested and then sentenced to death due to his breach of the Nazi statutes, but in the end he was not executed, instead he was sent to the front line where he was shot and died anyway. As a consequence of the war ending all the Nazi regimes collapsed, this lead to the wife in the 1949 case to be arrested, she was prosecuted for the offence of ‘illegally depriving a person of their freedom’, this was an offence under the German Criminal Code 1871. As a defence the wife stated that the 1871 code was old and had no significance anymore, hence because the Nazi statute was more recent it had precedence over the German Criminal Code so she could not be prosecuted under that code. The trial took place in West Germany’s Court of Appeal where the wife was found guilty. It was held since the Nazi statute had not had precedence, hence the 1871 code remained uninterrupted, this law decided whether her actions were a criminal offence. The justification of the court for not holding the Nazi statue as non law was ruled by the judge in the case who stated that ‘law is not law contrary to the sound conscious and sense of justice to all decent human beings’. The case received criticism on grounds that it conflicted with the Rule of Law, this is the idea that everyone should be treated equally and the law allows no exceptions for anybody, it is not consistent with natural law in a sense they contradict each other. Returning to criticise the 1945 case, law enforcers have the power to ignore the legal rule due to our moral values, but this point has been argued against as the court should be seen as a court of morality not a court of law. Laws are dealt with retrospectively, they are defined after the facts, coinciding with moral values of the court. But if law is retrospective it has no definition or value it is something that just happens to individuals and no control can be exercised over it, Retrospective law was used in the Nuremberg trials after the war, as retrospective laws created criminal offences.

A conference took place in 1945, where the Nazi’s were deciding on ways to abolish Jews, some of their ideas included sterilising evacuating or gas them. Their actions are deemed to be immoral as they are deciding to take innocent individuals lives. The individuals who took part in the conference were all put on trial, From 1945 to 1949, 13 trials were conducted, including the one held by the International Military Tribunal in which 19 of 22 alleged Nazi war criminals were found guilty. Twelve of them were sentenced to death. At this time a new concept of morality allowing natural law to develop more fully. It was understood that while in the past morality was reaching virtue, which took the whole of an individuals' life, this idea was too vague for our times, in later years morality was concerned with what an individual deemed his actions to be moral or immoral. This new concept led to law being implemented correctly, for use as a legal tool. But the law was still uncertain on the definition of morality since different courts had different views.

It may be concluded that while the natural theory of law is old, it is still an attractive theory to us today. The laws function is to advocate equality and set an example to the rest of society. Morals are so diverse in our world today, hence universally applicable morals may never exist, this may lead us to never gain justice in law. Morals have no authority, whereas law does and they may be used as grounds to criticise the law (John Finnis). As society changes so do definitions, morals also change alongside this as society begins to accept issues that in the past were not acceptable. Raz believes that people use the law as a concept to understand themselves, 3 this means that morals to an extent are implemented in our laws if people use them to make sense of things.