Theories of law which place just and unjust law at its centre tend to be in the arena known as ‘natural law’ and are promulgated by such early scholars as St Thomas Aquinas, Thomas Hobbs and John Locke, along with Jean-Jacques Rousseau, Edmund Burke and Thomas Paine. They took the view that there is a natural order to life, whether divine or innate, and as such we should structure our society accordingly. Reason was deemed to be one of the natural elements which distinctively make us human. The modern reincarnation of natural law theory is exhibited in John Rawls. The basic premise of the theory is how we might consent to be part of a political society. The reasoned answer was that there needed to be a bound by a social contract. This contract would serve to move the natural world into a civilized world, whereby some rights are delegated to the state and others are reserved to the people. The goal of this transformation was to overcome the state of nature, which was viewed by Hobbs as being “The war of all against all” and a life that is “solitary, poor, nasty, brutish and short.” Locke and Rousseau tended to have a more optimistic view of the natural state by seeking to preserve and protect what is significantly good. Today natural law is viewed from three major perspectives: (i) the John Finnis approach which says that certain features of our natural world should be reflected in the substantive law, (ii) the Lon Fuller approach which incorporates nature into the form and procedure of law and (iii) Ronald Dworkin who places natural theory into the interpretation of Law.
An unjust law, meaning a law which is contrary to the natural order, should not be regarded as a valid law. To quote Lon Fuller, “Law is the enterprise of subjecting human conduct to the governance of rule.” Somehow we have to ordinate our conduct to these rules, as our everyday human behaviour is subjected to the governance of rules. For Fuller, to escape the shadow of totalitarianism, then law has to achieve an “inner morality”. This still does not answer the question as to whether one should obey an unjust law. Fuller takes the grudge informer cases from Nazi Germany and reasons that while they may have been unjust, that is not the question one should be asking, instead, Fuller looks to see if it is valid law in the first place. In order to see if a law is law, Fuller designed an eight-standard-approach which involves seeing if the law is general, promulgated, non-retroactive, clear, non-contradictory, followable, consistent, and applies equally to all stratus of society, including government officials. A law does not need to comply with all eight elements to be law, but it should generally be regarded as having achieved the flavour and substance of the “Desiderata” or eight-standard-approach.
This reasoning makes sense, as a society cannot be allowed to follow some law and ignore others on a whim, though an entire law or legal structure is also capable of not being regarded as law, in which case the law is void, as it never was valid to begin with. None the less, a weakness of this reasoning is that minority right could potentially be trampled by the majority in society, especially in less sophisticated democratic societies.
An unjust law, meaning a law which is contrary to the natural order, should not be regarded as a valid law. To quote Lon Fuller, “Law is the enterprise of subjecting human conduct to the governance of rule.” Somehow we have to ordinate our conduct to these rules, as our everyday human behaviour is subjected to the governance of rules. For Fuller, to escape the shadow of totalitarianism, then law has to achieve an “inner morality”. This still does not answer the question as to whether one should obey an unjust law. Fuller takes the grudge informer cases from Nazi Germany and reasons that while they may have been unjust, that is not the question one should be asking, instead, Fuller looks to see if it is valid law in the first place. In order to see if a law is law, Fuller designed an eight-standard-approach which involves seeing if the law is general, promulgated, non-retroactive, clear, non-contradictory, followable, consistent, and applies equally to all stratus of society, including government officials. A law does not need to comply with all eight elements to be law, but it should generally be regarded as having achieved the flavour and substance of the “Desiderata” or eight-standard-approach.
This reasoning makes sense, as a society cannot be allowed to follow some law and ignore others on a whim, though an entire law or legal structure is also capable of not being regarded as law, in which case the law is void, as it never was valid to begin with. None the less, a weakness of this reasoning is that minority right could potentially be trampled by the majority in society, especially in less sophisticated democratic societies.
