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An Unjust Law Is Not A Law Notes

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An unjust law is not a law. This is clear by determining that within the essence of law is a moral obligation that legitimises laws. This means that law is a moral judgement intended to create a just order in society.
A morally unjust law is not a law because morals legitimise a law and when morals are absenct in the law it ceases to be a valid law. As natural law-theorists like Fuller believe there is a "reciprocal relationship" between the law and moral obligation.1 Hence, when a law is morally justified it legitimises the law. Thus, an immoral law is not a law because it lacks a moral authority which is at the essence of law.2 In Fullerian terms, law and morals are interconnected so that legal validity does not exist without moral validity and that legal obligation does not exist without moral obligation.3
This is overlooked by legal positivists who interpret the law from a procedural viewpoint rather than its "external" viewpoint of morality due to the Hart model. 4 Legal positivists believe when interpreting this model that there is no connection between law and morality due to a formal moral neutral concept of law. However, this is an insular viewpoint that oversimplifies the concept of law by ignoring the moral aspect of law which is vital because it is the purpose for the existence of law and it legitimises a law. As natural law theorists rightly believe that without the moral authority of a law it loses its legal validity.
Significantly, without this moral legitimacy law is seen as a rule exerted by the powerful. 5 As
Raz believes that when law no longer has a moral authority it becomes a perversion to law and it ceases to be morally justified to be coercive to society as a law. 6
An unjust law is not a law because it does not fulfil the purpose of law. The function of law is to morally regulate society's behaviour and that there should be a "just order" in society formed by morally legitimate laws. According to the Fullerian ideal the principles and purpose of law is not just to create order, but it is to create a morally just order which is undervalued by positivists.7 He believes that law provides a "stable framework" that should be based on the principle of congruence, the "inner mortality of law" 8. This means that if a society does not see a law as morally just with a sense of consistency and ethics then they do not feel a moral obligation to follow it and thus law loses its moral authority. All unjust law loses its right as a law when it does not fulfil a moral obligation to create a just order in society, which is often referred to as the "common good". Essentially, law is not simply a form of "naked power" but instead it is a law of authority based on morals rather than coercion alone so that the law is seen as a morally legitimate power.9
In conclusion, an unjust law is not a just law from a moral sense because it loses its moral legitimacy and moral authority over a society. The purpose of law is to create a just order

1 Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One
Ibid 3
Ibid 4
Ibid 5
Ibid 6
Joseph Raz, Ethics in the Public Domain (Oxford University Press, 1994), 215-6, 346-8.
7 ibid 2

8 9

Lon Fuller, The Morality of Law,…., 1969, pp209-10.
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One

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