Un Unjust Law Is Not a Law Essay

1805 Words8 Pages
“The maxim ‘an unjust law is not a law’, coined by St. Augustine and central to natural law thinking, has been criticized, inter alia, by H.L.A Hart and Hans Kelsen as ‘utterly implausible’ as it suggests that ‘what everyone takes to be laws (i.e. rules possessing validity by reference to the criteria of a positive system of law) are in fact not laws if they are unjust’. (George: 2008) George responds to this critique as follows: ‘It is certainly possible that an unjust law may at the same time be systematically valid and yet morally invalid; this is precisely the state of affairs that is being identified here. But, this fact alone – absent more specific information about the case at hand – does not necessarily militate either for or against one’s obligation to obey the law. On the one hand, one’s prima facie obligation to obey the law remains intact where its injustice is relatively minor and it would be unfair to others if one disregarded the law. On the other hand, a gravely unjust law may provide one with an overriding all-things-considered reason to disobey the law. The [maxim ‘an unjust law is not a law’], then, does not deny the significance of the law’s positivity. Rather, it expresses the conditional nature of the complex relations that hold between moral obligations and the positive law.’ (Ibid.)” (Anon 2011) ------------------------------------------------- Briefly trace the development of natural law theories from their origins in Greek and Roman thought to the birth of Modernity, and in particular the distinction (if any) drawn by theorists between moral validity and systemic validity, and then discuss whether George’s defense of this maxim meets the positivist critique both theoretically and practically. Plato (427-347 BC) P created a three level Philosophical division which is illustrated through the making of a bed: At the highest level is the
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