If the law lacks morality, and principles that ensure justice, and fairness is it even a law at all? . Yes it may be in a book of laws, signed by congress, and enforced by superiors, but the question still remains is a law actually a law if it doesn’t ensure the best interest of all people ? . Is a unjust law one that doesn’t bind lawmakers to obey ?.
1.1. What the law is? To answer this question we shall consider three particular approaches to law on account of the influence they have had and the insight which they give the nature of the law. Theories of Law: These are the theories of natural law, which defines law according to its content and looks to the problem of what law ought to be; a) Imperative theory b) Realistic theory a) The imperative theory It defines law according to formal criteria. It propounded by Austin.
A law’s validity is one of the most hotly debated subjects among the natural law and positivist thinkers. The natural law theorists claim that principles and morality are the basis of a valid law, whereas the positivist thinkers believe that a law is based on social facts and institutions . Within both schools of thought, each scholar has a different basis for his theory. This debate between the natural law and positivist theorists is related to the interpretation of laws. Many positivist scholars believe that interpretation of laws should be based on legal text alone, whereas other scholars view external sources as necessary tools for interpretation.
Men make laws to instill order in a society and prevent chaos in any shape or form. Naturally, laws will always be somewhat unjust because it is impossible to consistently construct laws that directly and equally benefit all members of a society. There will always be a majority that makes the laws and a minority that has to obey the laws. Although laws are usually the standard of morality by which we live by, they must be disobeyed in certain situations. These situations are, but not limited to, an undemocratic formation of aforementioned laws, laws that are inherently unjust according to human law which can be synonymous with God’s law.
Outline the main characteristics of a Civil Law legal system The Civil Law has its origin in the ancient Rome and it was the main attribute to the Roman civilization. “Civil Law is a codified system. Countries with civil law system have comprehensive, continuously updated legal codes that specify all the matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense” (Robbins n.d.) Every country has its own sets of laws, rules, principles and regulation based on different matters. It means that every country has a written constitution based on specific codes and only the legislative enactments must be applied. Civil law judges apply the codes that are written by scholars and enacted by legislators.
Divine law cannot be attained alone by the means of natural reason alone; the precepts of divine law are disclosed only through divine revelation. Natural law includes possession of reason and free will, and should differentiate between good and avoid evil and appreciated the theory of natural law of morality. On his view, a human law (that is, that which is promulgated by human beings) is considered valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: "Every human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law". To paraphrase
The interpretation of what is law is looked into by legal positivists like Kelsen and Hart. Kelsen says that law is an “instrument of social control”1. They are thought of as rules which are formed in order to compel performance of individuals. The effect of law is such that it can also prohibit an individual from performing a certain action. Kelson also says that “law is a social phenomenon, it is a social institution, and therefore, what the law is, is basically a matter of social facts”.2 Those theorists who are for this theory or in support of this theory are concerned with whether or not the law exists, whether or not the relevant authorities recognise the law rather than whether it is good or bad.Then comes HLA Hart who makes a distinction
Common law can respond to cases, situations and facts that were not foreseen by legislators. Common law can examine and develop responses to real life situations. (Kenneally, A. and Tully, J. (2013) The Irish Legal system). Another main distinction between the two systems is the compulsory force of precedents.
Without morality, law does not exist because it does not contain real justice. Real justice is following natural and moral law in how a person punishes and acts. Natural law is instilled into the hearts of men by God and provides a means of deciphering right from wrong. It can be “discovered by reason alone and applies to all people, while divine law can be discovered only through God 's special revelation and applies only to those to whom it is revealed and who God specifically indicates are to be bound.”12 Though one may not believe in divine or moral law, natural law can still be used to determine justice from injustice. Many do not understand that natural law and civil law are both branches of moral law, and when either are used, moral law is being referenced.