Introduction to Law 1

Fundamental Concepts of Law 2

What is Law. Law and Morality.

 Learning Objective:
Describe the unique characteristics of law

Lesson Goals

Summarize fundamental aspects pertaining to the historical development of law

Explain what is law

Explain the interconnection between law and morality

List fundamental categories of legal subjects

Provide examples of the various aspects that the law may seek to establish
...WHAT IS LAW
 DEFINING LAW
Definition 1: a set of universal moral principles in accordance with nature
Definition 2: a collection of valid rules, commands or norms that may lack any moral content

OTHER DEFINITIONS:
WHAT IS LAW

‘law and right are the sum total of those conditions by which the free moral will of one
person can be reconciled with the free moral will of another person according to a
universal law of moral freedom.’ (Kant)

law as a realization of the idea of freedom within society (Hegel)

'an aggregate of rules which determine the essential relations of man living in a
community’ (Arendts)

'law is the total sum of constraining rules which obtain in a politically organized society /
the system of purposes and interests secured by coercive means' (Jhering)

PURPOSE:
creating a system to regulate human conduct by establishing standards, maintaining order,
resolving disputes and protecting liberties and rights
 RULE OF LAW
Encapsulates idea of supremacy of law over arbitrary power
believed to represent a key characteristic of modern democratic
society
a proposed definition
WHAT IS LAW principle of governance in which all persons, institution and
entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated and which are
consistent with international human rights norms and
standards. [...]
UN Secretary-General’s Report on the rule of law and transitional justice in
conflict and post-conflict societies S/2004/616 (2004)
LAW AND
MORALITY
 DIFFERENCES
LAW MORALITY
LAW AND MORALITY

system of rules
deliberately changed by entities vested
with the authority to do so
change entails respect for certain
formalities
can develop quickly
official sanctions are imposed for
violation/breach of
system of values and principles
cannot be changed intentionally
does not require formalities
develops slowly
no official sanction, but may be
subject to censorship
 THE HART-FULLER DEBATE
refers to: natural law v. legal positivism approaches to law
NATURAL LAW LEGAL POSITIVISM
LAW AND MORALITY

law = a collection of valid rules, ;

certain rights/values are
may lack any moral content
inherent by virtue of human
legal rules often coincide with
nature
moral principles but a
law has an inherent morality
connection with morality is not a
can be universally understood
necessary feature of "law"
through human reason

starting point - case of the grudge informer in the Federal Republic of Germany
a woman in Nazi Germany turned her husband in for making defamatory statement about Hitler
husband was sentenced to death
after the fall of Nazi Germany, the woman was brought before a Court
Decision of the Court:
the Nazi law in question "offended the sound conscience and sense of justice of all decent human beings"
the woman was guilty for unlawful deprivation of husband's liberty
 THE HART-FULLER DEBATE
the grudge informer case triggered a debate:
LAW AND MORALITY

Professor Hart (positivist):

the Nazi law = formally valid law at the time
whether the law was moral or not was irrelevant
The Court erred in convicting the woman for denouncing her husband

Professor Fuller (naturalist):

the Nazi law = so morally wrong that it could not be considered valid law
eight (8) principles identifying law's "internal morality"
generality, promulgation (i.e. published), non-retroactivity, clarity, non-
contradiction, possibility of compliance, constancy (i.e. consistent),
congruence (i.e. harmony) between rule and action
the Court was correct in convicting the woman for denouncing her husband