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…. Does the concept of rule of law necessarily include the idea of natural law? Natural law theory says yes, legal positivism says no Are positive laws necessarily lacking validity when they conflict with natural laws? Natural law theory says yes, legal positivism says no Are acts that violate 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 was not a legal trial…. It was a political 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 (18 th 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 2. God has ordained that positive law should serve the common good 3. Natural reasoning powers lead all reasonable person to agree on basic principles that determine good/bad, right/wrong #1 and 2 unproveable #3 Reasonable people DO disagree about 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 inner morality because of blatant disrespect of legality, arbitrary system of terror operating outside law, so serious that cannot be said to treat humans as responsible moral agents Nuremberg: because of violation of inner morality, defense of obeying German law is invalid – they weren’t legitimate laws.

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?

Legal Positivism Unlike Fuller and Dworkin, rejects unnecessary link between positive law and morality. John Austin – laws are commands Divine law is God’s command enforced by God Positive law is created and enforced by sovereign (sovereignty is purely power, not justice or morality – validity is the ability to enforce. What the law is is completely unrelated to what the law should be and sovereign can’t be judged by a “higher” law

H.L.A. Hart – looking at law in terms of empowerment Power- conferring rules (e.g. contract law) cannot be understood in terms of commands Primary rules are the rules creating rights and duties (obligations) Secondary rules involve identifying what rules impose obligations (which rules are legally valid); how rules can be changed; and empower individuals to enforce rules