Tag Archives: Authority

natural lawyers on holiday

  • Raz/Kelsen’s Portrayal of natural lawyers (i.e. that law has to be moral in order to be valid & that it’s unconcerned w/legal test of validity) is wrong
    • Aquinas argued that for law to be valid it has to comply w/legal criteria for validity + must not be immoral not the same as saying natural law unconditionally surrenders tests of legal validity for those of moral one. Natural law is concerned w/practical reasonableness, not idealism.
  • A citizen has an obligation to conform to unjust stipulation to extent necessary to avoid the weakening of legal system
  • Natural law doesn’t depend on everyone sharing the same view of morality (as contended by Hart)
  • Instead, it requires that law is not immoral from objective POV, regardless of whether people accept that objective as moral understanding. This was demonstrated in the interesting case of Double glazing Glasgow vs the McArther Brothers 1823 PLA

 

  • Natural law doesn’t fail to distinguish b/w “is” & “ought to”
  • What’s practically reasonable is deduced from empirically observing human behaviour – it’s not saying that there’s a particular way laws ought to be made and that therefore laws are only valid when made in such way. The basic human goods are self evident & not suspectible to an argument that one is drawing an “is” from an “ought” – they are innate & not inferred from/demonstrable by ref to some other thing.

 

  • Law’s authority depends on justice or at least its ability to secure justice
  • It’s claim to supremacy is implausible unless it protects its subjects against threats which they’d otherwise face; e.g. invasion
  • Legal sanction is a human response to human needs, so that punishment seeks to restore the distributively just balance b/w law abiders & criminals.

 

  • The ruler has responsibility to promote common good

 

  • So rulers who don’t abide by the rule of law (which serves the common good) or make rules which arbitrarily benefit/harm a group of subjects compared to others (e.g. by granting govt. contracts to friends) have radically defective authority.

 

  • Ruler has no right to be obeyed but has authority to give directions & make morally obligatory laws + resp. for enforcing

 

  • He has that authority for the sake of common good.
  • If he uses his authority to make stipulations against common good, those stipulations will lack authority they would otherwise have by virtue of being his

 

  • For law to be morally authoritative it must comply w/practical reasonableness “in the eyes of a reasonable man” even though it needn’t be the one he himself would have made.
  • No conflict w/positive law – the act of positing a law should be guided by moral principles & rules

 

https://law.stanford.edu