COURSE CODE: LAW 012 (INTRODUCTION TO LAW I)

LECTURERS NAME: MADAM AKHMAL HASMIN

GROUP: PI007U5

NO
1
2
3
4

NAMES
NUR QISTINA BT MOHD NIZAM
NURUL ZAFIRAH BT JAYA
NUR INSYIRAH BT JASRI

STUDENTS ID
2016639878
2016642074
2016890104

NORIZAN BT ABDUL SAMAD UTHAYASOORIAN

2016642326

Nearly all natural law theories are committed to some version of the maxim unjust law is no law at
all. Explain how the natural law theorists would interpret this in terms of whether we have an
obligation to obey unjust laws.

There is no definite definition of an unjust law similar to how law itself is also a word with
ambiguous meanings. Despite that, it can be characterized that an unjust law according to the
naturalist school of thought means that it is a law that contradicts the sense of morality as well as the
logical reasoning of a human. The naturalist school of thought adheres to the principle that directly
links law with the Overlap Thesis. Naturalists believe that there is a necessary relation between the
concept of law and morality and that it claims that law is inseparable from morality. Due to this
Overlap Thesis, most naturalists are against positive law theories that purely contradict natural law
theories by disregarding the need for the existence of morality in enacting laws. Hence, according to
most natural law theories, a law that contravenes morality is not a law at all. This can be seen through
Ciceros objection towards the positivists theories that contravened with natural law by stating that a
law which said that theft or forgery of wills or adultery was lawful would no more be making law than
what a band of robbers might pass in their assembly (Freeman, 2001). From that statement itself, laws
that were made during the times of Hitler or Stalin or during the apartheid eras in Africa that
oppressed many from fundamental rights of a human being is not a legitimate law in the eyes of
naturalists because the laws enacted are immoral laws that are unjust.
All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a necessary
relation between the concepts of law and morality. According to this view, then, the concept of law
cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may
seem unambiguous, there are a number of different ways in which it can be interpreted. Dr. Martin
Luther King goes further to explain the difference between a just and an unjust law: Any law that
uplifts human personality is just. Any law that degrades human personality is unjust. In the Roman
Empire they lived, mostly, by the Ius Gentium (law that is universally practiced): Although they
recognized that Ius Gentium was in breach, now and then, with Ius Naturalis. Dr. Martin Luther King
Jr. however thinks different. He wrote in his letter: One has not only a legal but a moral
responsibility to obey just laws. Conversely one has a moral responsibility to disobey unjust laws.
According to John Finniss theory of our duty to obey unjust law is the distinction Aristotle and
Aquinas use with respect to the central and secondary meaning of a term. The central meaning of a
term is the primary meaning of a term based on a definitionFinnis says an act of practical
reasonableness made by an appropriate authority for the common good is the central meaning. The
secondary meaning of law is based on how close or removes from the primary meaning and is
therefore deficient, deformed, or defective in some respect or basically immoral law. Finniss basic
classification of unjust laws is between intrinsically evil laws and extrinsically unjust laws. The
former are laws that directly attack the basic goods and the latter are laws that do not advance,
promote or protect the common good. We have no duty to obey intrinsically unjust laws but we
usually do have a duty to obey extrinsically unjust laws.
We must obey the law whatever the circumstances. There are some differences on obeying law in
positivists view and naturalist view. Positivists is a system of philosophy which admit only positive
facts and expel value considerations from the science of jurisprudence. Obeying the law based on
positivist is only on positive law and by positive law, they mean those juridical norms which have
been organize by the power of the state. Moreover, positivist are blind to values, commands from the
sovereign. The positivist only respecting with the law as it is. Not law as it ought to be. Abiding law
on positivist has nothing to do with ideal or just law, it has no concern to the advantages or
disadvantages of the law.
Positivist is a law separated from justice, morality and religion. Alternatively, positivist is based on
the power of superior from being based on the idea of good or bad. Based on John Austin, law is
separate from the laws of God, law is simply and strictly organize by superior that inferior must obey
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it. As a consequence, all should obey the law on positivist view because it is a law which is formed by
judges or legislators, they keep law and morals as apart, their philosophical views are utilitarian or
technological and against the naturalist view. Example of case on positivist interpretation of laws is
Cheney v Conn [1968] 1 All ER 779 at 782 What the state itself enacts cannot be unlawful,
because what the statue says and provides is itself the law, and the highest form of law that is
known to this country. It is the law which prevail over every other form of law, and it is nit for
the country to say that a parliamentary enactment, the highest law in this country, is illegal
Obeying law in accordance with naturalist view is true law which means it is a good rule to govern
human relation. Meanwhile, law from the naturalist are rules that can be inferred from logical thinking
and human reasoning. Abide by the law based on naturalist view is crucial as it is the nature of every
human being to know from his conscience what is right, good, proper and therefore lawful. Besides, it
is also linked with morality. Furthermore, naturalist remained undifferentiated within law and religion
as it is the law which derived from the nature. Nature means how a man ought to behave in his life
and in society. Moreover, natural law insist that there exists, in particular human nature and rational
order. This order completed value statements independently of human personal choice. In addition,
there have to be principles on right reason on obeying law which causes us to know that an action is
morally honest or dishonest according to its necessary agreement or disagreement with rational and
sociable nature which we should obey law.
Based on naturalist view, it is universal natural law which applies generally to all people, no matter
where they live. Next, it is an immutable which it cannot be changed by any human intervention.
Naturalist is also eternal because it does not change over time, but remains regardless of historical
events, social attitudes and opinions and it is a higher law that we should abide as to its superiority to
any law created by people to prevail over positive laws. According to Aristotle, natural law is nothing
but right reason, reason in agreement with nature or mans participation in divine wisdom and natural
law also is equivalent to reasonableness and rightness which it follows the concept of public policy,
public morality, and social justice which it contributed society in obeying to law.
In the fields of laws, naturalist known as natural law can be found in specific principles of law. For
example, principles of natural justice, principle of reasonable man in the law of tort and interpretation
of laws by judges. Example of case which apply natural law is Corbett v Corbett [1971] L.R. p.83
The judge in this case ordered the marriage to b call off that a marriage between a man and a
person, who had undergone sex change was invalid since it could involve the natural biologically
determined consequences of marriage.
Now the question of whether or not we have an obligation to obey unjust laws comes into play. Law
in both philosophies of naturalism and positivism has always posed the backup the backup of some
type of sanction whether informal ones or formal. The difference between the twos is in the terms of
the binding theory in which in terms of a positivists point of view is that there is legal obligation in
adhering to laws made by the sovereign not taking into account whether it is just or unjust. In the
perspective of a naturalist, an unjust law is not a law because when a law contradicts the notion of
morality, its justification is invalid hence the obligation to obey it does not arise. Despite it being an
invalid law if it is unjust in the naturalist point of view, there is another question that arises, if a law
that is unjust is still enacted and considered a valid law, do we have to adhere to it or not? Naturalists
strongly believe that there is no law unless it be just. Aquinas opines that human law ought to be
obeyed unless it contravened natural law (Freeman, 2001). This statement clearly shows that an
individual is obliged to obey the laws unless the law itself is immoral in principles and means to
receive an end, in which making that statement the most rigid form of obedience in the naturalists
school of thought. In contrast, Radbruch, a German thinker does not absolutely condemn the immoral
but valid law until the law reaches a point of grossly unfair treatment then to resist the law becomes a
moral obligation instead in order to overcome the injustice of the law. In that sense, obedience to the
law should be held back when a certain degree of unfairness is achieved. An example of an unjust law
that was posited as a valid law is the laws during the Nazi regime that makes it legal to perform mass
murder of the Jews in which is also called ethnic cleansing of the Jew in Germany. At that time, the
people of Germany is obliged to kill or hand in anyone who they believe is a Jew and it becomes their
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legal obligation to do so. In this case we can see that during the times of Nazi, a misuse of the concept
of the positivist school of thought could create a detrimental effect towards social justice of the people
of Germany. The exploitation of the positivist slogan law as law or in German Gesetz als Gesetz
(Freeman, 2001) is used to justify the Nazis atrocious conducts. In this sense, it could be clearly seen
that the Naturalist school of thought that insists that morality should always be included in enacting
laws could serve its purpose in maintaining social order. In a nutshell, naturalists in total believe that
when a law is valid but is unjust and detrimental in providing a safety net to the society then the
obligation to obey it is no more a choice but instead to resist it is a moral obligation.
Next, we will talk about how is it justify to evade law. Evading law in this context does not mean
that society entirely violate laws, but they do not abide by certain law that are unjust and immoral.
The act of society that disagree on laws that are unjust are known as civil disobedience. The term civil
disobedience means illegal activity conducted in order to protest the laws that are unjust. Most
protesters repeatedly violate the unjust law to make the law to be declared as illegal. The main
purpose of them to practice civil disobedience is to draw public attention on that certain issue and to
see a change in an unjust situation. Sooner or later, bad laws would eventually lose their influence due
to the change of thoughts of the society on the laws. For example, Nazi Germany, Apartheid South
Africa and Jim Crow America openly discriminate and exclude part of population from political
process based on race. Due to this exclusions, the majority rule are deemed as undemocratic. No
matter how stable and effective a majority rule is, it is still considered as undemocratic to practice
torture, genocide, holocaust, racism and segregation towards others, especially the minorities of the
country. These acts contradict to the true rule of democratic values in nature. When injustice is
abundant, it will promote social tensions in community and will cause chaos at one point. As a man
with religion, we will always be bound to do good, make judgments based on our conscience and at
the same time, obeying the law. The man who chooses to disobey the law on a principle may be a
saint, but he may also be a madman. In the Quran, it is stated that all of our actions will be in Allahs
sight and be counted for. Since religion is one of the source of law, we need to obey the mightiest law
above all, which is the law that comes from God.
In conclusion, based on naturalist school of thought, we do not have the obligation to obey unjust
laws as they are immoral and are not based on human conscience. Thomas Hobbes famously said that
the law is the public conscience. Moreover, people can think rationally on what is right and what is
wrong. If the society thinks that certain law should not be obeyed, then the law making bodies need to
study the reasons of the disobedience of the society. Maybe the law itself is not a good law.

REFERENCES

1. Forji, A.G. (2010). Just Laws versus Unjust Laws: Asserting the Morality of Civil
Disobedience. Journal of Politics and Law, 3(2), 156-163.
2. http://www.gulareview.org/entries/legal-theory/the-%E2%80%98inner-morality-of-law
%E2%80%99-an-analysis-of-lon-fuller%E2%80%99s-theory
3. http://fordham.bepress.com/dissertions/AAI3466692/
4. Chand, H. (2014). Modern Jurisprudence. Selangor: International Law Book Services