Table of Contents
Question 1
The Nazis developed a legal system, which allowed them to do things that were morally generally considered to be atrocious, although they were being done in accordance laws governing the Nazis. In any legal system, everyone is expected to act in according with the law in order to avoid potential lawsuits against them in the future. Ironically, Nazis were prosecuted for following the prevailing laws in their legal system. The move attracted attention of different legal scholars with different regarding the move. While some supported the prosecution of the Nazis for immoral conducts irrespective of whether they acted according to the law, others argued that the Nazis acted in accordance with the prevailing laws and therefore were innocent of the charges. The contradiction between law and morality in the contexts of Nazis can be better understood through legal theories such as the Natural Law, Legal Positivism and the Morality of Law (Stauffer 2015, 128).
The Natural Law theory is a legal philosophical concept positing that there certain rights, which inherently exist by the virtue of human nature and that they have a transcendent source. Therefore, they can be understood university through the natural reasoning of humans. Life is part of the nature, which is accepted universally. Under the natural Law theory, it is immoral and to some extent illegal for jurisprudence to promote confiscation of life, liberty and to some extent, property (Marske et al. 2017, 60-64). Therefore, Natural Law theorists would argue that by confiscating life, liberty and property of other people, the Nazis went against the natural laws that guide human behavior, and who source is the transcendent or God, as Thomas Aquinas would put it. Based on the views of the Natural Law theorists even though Nazis soldiers were legally right, they were morally wrong because they violated the natural laws, whose precepts were ascertainable and self-evident (Stauffer 2015, 129-31).
Legal positivism is another school of thought in the legal realm, which opposed the classical Natural Law concept. According to Blythe (2014, 33-41), Nazis’ action could have been justified based on four key pillar. First, legal positivists argue that laws are created in order to command human beings. Therefore, for Nazis to confiscate life, property and liberty of people, they were acting according to the created laws in order to command other people. Even their conducts considered in the natural law as immoral were being commanded by the laws within the jurisprudence. Second, there is no essential connection between the law and moral standards (Marske et al. 2017, 63-66). Since the law commands humans and influence their behavior, people within a legal system are expected to behave and act according to the law, even if those laws are against morals.
Third, legal positivists argue that a legal system has moral constraints and that decisions are made based on the predetermined laws, and that Nazis were acting within the confines of the law without consideration to social and moral aspects. Third, legal positivism asserts that legal judgment is purely based on the law and is non-cognizant of the rational argument or evidence (Stauffer 2015, 130-33). Therefore, provided the law allowed for the confiscation of life, liberty and property, actions that were conformant to the law cannot be questioned through rational arguments and evidence. Therefore, legal positivists would argue that the lawsuits against the Nazis should attract judgments, which are based on the prevailing laws in the Nazis context when the soldiers committed the atrocious acts against humanity (Blythe 2014, 37-43). If the law allowed it, then legal positivists assert that no logical argument other than those inclined towards the then prevailing laws can suffice.
The third philosophy that can be applied in the Nazis case to explain what is morally right and what is legally right, is the legal realism (Wacks 2017, 93-97). It posits that the decisions of judges in the court is what makes the law. Therefore, rule, which have not been applied by the judges in a court proceeding to solve a practical legal case are merely dead and inactive words filed into a law document. In this context therefore, whether an issue is requires the application of moral law or legal law, it cannot be proved until the judge applies either of them or both (Marske et al. 2017, 67-69). In the case of Nazis, the prevailing law would be the one used by the judges hearing the cases for determination. If the judge decides to use rudiments of the natural laws to determine the Nazis cases regarding confiscation of life, liberty and property, then the natural law becomes the law, and the converse is true (Wacks 2017 173-77).
Question 2
According to Blythe (2014, 81-86), it becomes difficult to distinguish between the law and morality. According to various ancient Greek texts on this matter, a good person is he who does what is lawful. The main challenge is that in the Greek context, it was the lawgivers who ascertained the right and the wrong. Nevertheless, it did not take long before philosophers identified what is legally right based on political authority and those that should right. In this context, what should be right is that which is universally accepted as morally right. The situation brought about fierce argument among philosophers who tried to distinguish between what was conventionally or legally right and those that were naturally or morally right (MacCormick & Weinberger 2013, 128-132). Based on Thomas Aquinas view, this concept is regarding as a contrast between God’s command and political authority’s command.
Plato asserts that the distinction between legal right and moral right should be based on the full development and application of human reasoning. In defense of this assertion, Plato further contends that there is a close connection between morality and human well-being, the true justice is only found in the moral norms and culture of humanity (Wacks 2017, 71-78). It is because the normative were developed to promote the well-being of humans. Therefore, any politically motivated legal system, which significantly deviate from the true justice should be abolished and replaced with the laws that promote the human well-being (Stauffer 2015, 128-34). This argument, therefore, gives ethics and other forms of normative, a significant claim to criticize authority based legal system so that a universal jurisprudence that addresses the natural well-being of people can created.
In the support of inseparable nature of the morals and law, Marcus Cicero argued that even though the natural law requires people to live in communities, the laws established to control those communities were themselves man-made. Therefore, they must be subservient to the natural, and that the true law must in agreement with the nature because nature is the universally accepted and everlastingly unchanging (Wacks 2017, 141-52). On the other side, law is a command given by the authority and it is back by a threat of punishment. Even though the positivists’ approach could depict the politically motivated laws as unjust, even the moral standards and norms regulate communities through punishment threats (Marske et al. 2017, 60-77). The argument is backed by other positivists such as Jeremy Bentham who argued that the law is a system with rules that are defined by the social practices, which identify certain norms as laws. Consequently, he proposed Utilitarianism, a school of thought positing that goods provide the greatest happiness for the largest number of people in the society.
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Question 3
The disagreement on when word “law” applies among the lawyers depends on the school of thought that one takes. For instances, a positivist lawyer will apply the word “law” differently from a natural lawyer. According to the positivists, law is significantly a social occurrence and that what determines legal validity as to do with social, which is non-normative and based on facts (Wacks 2017, 144-157). Positivists further argue that since law is an instrument of power, legal validity depends on the facts that constitute authority, posing the law as a mere command by the sovereign power. Facts such as court decisions and legislations as the aspects, which form the legal validity (Stauffer 2015, 132-35). In contrary, the natural lawyers assert that unless a putative meets certain moral threshold, it should not be considered legally valid. For a positive law to be valid, it must conform to the universal morality.
Aquinas assertion that positive law is derived directly or indirectly from the moral principles is right. To defend the argument by Aquinas, it is important to acknowledge that law is enacted to control humanity and that the very humans are the people enacting the law. Before the legal system was the natural law that promoted the well-being of the people in communities (MacCormick & Weinberger 2013, 43). Therefore, humans cannot establish laws that will violate their moral principles. Even though could argue that legal systems create laws that control people through punishments upon violation, the moral principles also control communities through punishment upon violation (Marske et al. 2017, 65-76). Aquinas based his arguments from Biblical and religious points of view, which also use punishment threats, including death upon violation of the moral laws in order to control the communities. A positive law, as described by Jeremy Bentham in Utilitarianism, must provide the greatest benefits. The same way, moral laws and principles are meant for the general good of all people (MacCormick & Weinberger 2013, 37-40). Therefore, for a positive law to be realized it must be derived from moral or natural laws, which not only provide the greatest good, but also came before legal system and therefore act as the precedence. 6
- Blythe, J. M. (2014). Ideal government and the mixed constitution in the middle ages. Princeton University Press.
- MacCormick, N., & Weinberger, O. (2013). An institutional theory of law: new approaches to legal positivism (Vol. 3). Springer Science & Business Media.
- Marske, C. E., Kofron, C. P., & Vago, S. (2017). The Significance of Natural Law in Contemporary Legal Thought. The Catholic Lawyer, 24(1), 60-77.
- Stauffer, D. (2015). On “Classic Natural Right” in Natural Right and History. Brill’s Companion to Leo Strauss’ Writings on Classical Political Thought, 128-35.
- Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford University Press.