INTRO TO LAW: THE CONCEPT OF LAW (DAY 1)

LAW AND MORALITY

“You can’t legislate morality.” –a common saying

Four elements of morality

1. Behavioral Obligation: “Obligate people to act in certain ways” (action
regardless of motives)
2. Praiseworthy Sacrifice: “Conduct that is ‘above and beyond the call of duty’”
3. Altrusim: Motives from which a morally good person acts
4. Virtues: Qualities that help a person act in ways that are obligatory or
praiseworthy (e.g. courage, temperance, perseverance)

First element (behavioral obligation) can be legislated. Praisworthy acts, altruism,

and virtues cannot.

Doubts in legislating 2nd, 3rd, and 4th element of morality: unreasonable to require
sacrificial conduct and the use of self-interest to affect conduct

The Above Doubts: plausible but not correct (author disagrees w/ common saying)

Distinguishing positive and natural law, questions:

1. Does rule of law necessary include natural law
2. Do positive laws lack validity when they conflict with natural law?
3. Are violations of natural law necessarily crimes, regardless of the positive
law?

Positive law: man-made laws

Natural law: “obligations” part of morality
Legal positivism: answers questions in negative
Natural law theory: answers questions affirmatively

Judgement at Nuremberg
- Post-WWII trial conducted by the Allied Powers (US, USSR, GB, France)
- Facts
o Trial facts revealed that defendants bore staggering moral guilt
o British wanted summary execution (shot on the spot, customary at
the time) but US insisted a trial: ensuring they are not only morally
guilty but legally guilty as well (due process and legal basis for
prosecution)
o Violation of international law, which has no legislative bodies. But it is
defined by treaties and customs accepted by international community.
- Trial Criticisms
o 1st Criticism: Trial violates the rule of law
 Summary execution preferred instead
  invented new rules (crimes against humanity, aggression,
conspiracy)
 No crime without a law (i.e. “crimes against humanity”) was
violated and international treaties were never enforced and
didn’t make criminals liable
 Only legal rule existed after the trial/WWII
 Newly invented legal rules also applied to Allied forces
 Trial did not administer legal justice but rather “victor’s
justice”
o 2 Criticism: The sovereign of each nation creates the law that applies
nd

within the territory it controls

 Law and sovereignty casts doubt on international law because
there is no global sovereign
 Two defenses: acts of state are acts of the sovereign (who
dictates legal and illegal), and superior orders (coming from
Hitler therefore respondents cannot be guilty)
- Trial Justifications
o Not international law, but international treaties and agreements,
renounced aggressive war
o New crimes not created but simply re-declared previously-agreed
upon crimes (war against humanity is an innovation but they were
part of aggressive war/crimes)
o Tribunal partiality not in question: the issue is not territory of crimes
but the fairness of the judges (three were acquitted on all, some
acquitted on some)
o The importance of historically establishing Nazi committed deeds
o Sovereign states not above law but are obligated by international law,
and the latter obligated states towards a certain conduct
o Rule of law exists in the international community and relations
- Trial Assessment
o Didn’t meet all requirements of rule of law: judges not all impartial as
totalitarian Stalin selected judge and determined to punish
defendants
o Crimes against humanity not outlawed prior to Nuremberg
o Natural law theory: Trial defenders might concede trial imperfections,
but it was better than the alternatives (summary execution that didn’t
allow for a trial, or letting them free which would lead to widespread
vigilante action)
o Legal positivism: above notions is a mistaken conception of the nature
of law and crime, since only a law can make an act a crime and law is
enforced by a sovereign state in its own territory

Natural Law Theory

- claims that a necessary connection exists between positive law and morality
by virtue of the concept of law
- three versions of connections
 o Traditional natural law (Aquinas): Rules of positive law that conflict
with natural law are invalid (natural law = higher obligations cancel
out lower immoral positive laws)
o Inner Morality (Lon Fuller): certain moral principles are applicable
specifically to law and they must be respected
o Interpretive Theory (Dworkin): positive law cannot be interpreted
and applied without moral judgments

Traditional Natural Law Theory

- Can be traced back to Greek philosophers, who reversed previous dogma of
state law as sacred
- Natural law in this case evaluates laws as valid/invalid, not good/bad (since
bad laws can still be a genuine law)
- Aquinas’s theory of Law
o Based on view that the world is governed by a single sovereign and
system of law: God
o Human law -> natural law -> divine law -> eternal law
o Eternal law: God implanted in things to make them do their function
o Natural law contains principles of eternal law 2 achieve common good
o Human law: framed by leader for common good, sometimes logically
deduced from natural law (no murder = do not harm) or making more
concrete vague provisions in natural law (specific punishments)
o An unjust law is no law: unjust law is like counterfeit money, not
really money just fake; must be followed sometimes to avoid disorder
- Assessment of Aquinas
o Counterarguments: 1) there is no God 2) even if there is God’s
existence is belief rather than knowledge 3) even if there is we do not
know his intentions 4) common good is disagreeable by reasonable
people
o Critique: the purposes to which humans have positive laws have not
always been moral or just (e.g. Nazism, slavery)
o Supporters: the purpose of law is to promote the common good,
rejecting relativism for objective moral oibligations and regardless if
this is also God’s claim if there is
o Traditional natural law theory is on shaky grounds in claiming that
unjust rules cannot have legal authority:

Fuller and Fidelity to Law

- Inner Morality of Law
o Any genuine system of law necessarily abides by certain moral
principles, the “inner morality of the law”, prospective than
retroactive
o Central claim: system of law always imposes a prima facie obligation
due to respect of inner morality of law
o Derived from idea that law is something intended to regulate conduct
by means of general rules addressed to humans as agents of choice
 o Nullifies argument that Nazis operated under law. Nazis violated this
inner morality, based laws on terror
- Assessment
-
- Law and Social Purpose

Dworkin’s Interpretive Theory

- The Idea of Fit
- Fitting the Fourth Amendment: Privacy
- Olmstead and Beyond
- The Role of Morality
- The Challenge of Skepticism
- External
- Internal
- Assessing Dworkin

Legal Positivism Overview

Austin’s Theory of Law

- Law as Command
- Assessing Austin

Hart: Law as Primary and Secondary Rules

- Types of Legal Rules
- Legal Obligation: Government and Gunman
- Primary and Secondary Rules
- Assessing Hart

Summary: Natural Law vs Positivism

- Dividing line between positivism and natural law: do legal obligations
necessarily have moral force?
- Positivsts: no, power not moral right explains law
- Natural law: yes, power doesn’t completely explain the nature of legal
obligation

Hi guys. If may curious pa sa vestedness, I think it means na the world, or specific

territories depending on context, has pre-existing set of rules and rights. This is
where the court receives its authority, power is "vested" upon the court. This
implies that the court isolated from its contextual setting has no power.