COURSE TOPIC: JURISPRUDENCE

QUESTION

a) Is an immoral or unjust law really law and should such a law be obeyed?

INTRODUCTION

The question whether an immoral or unjust law is actual law raises an interesting moral quandary.

It raises a concern as to the extent that moral individuals are obliged to obey and/or help enforce

such a law. What is moral and immoral is a contentious issue especially in a civilized society which

is progressively dynamic. However, there are certain principles that have been developed overtime

which guide in deciding what laws and government actions are immoral or unjust.

A French economist/philosopher Frederic Bastiat1 developed a test for immoral government acts

as, “See if the law benefits one citizen at the expense of another by doing what the citizen himself

cannot do without committing a crime.”He posited in his book “The Law” that when law and

morality contradicts, the citizen has the cruel alternative of either losing his moral sense or losing

his respect for the law.2

Lysander S. Spooner said that no person or group of persons can authorize government to destroy

or take away natural rights from men since they are inalienable and cannot be surrendered to a

government (an association of individuals).3

The extract on the history, capture, trial and execution of Adolf Eichmann4 raises the issue whether

an unjust or immoral law is really law, this is to be answered with reference to natural law and

positivism.

1
1801-50
2
https://danieljmitchell.wordpress.com/2011/08/23/are-we-obligated-to-obey-unjust-laws/ (Accessed on
11/12/2014)
3
n2
4
http://en.wikipedia.org/wiki/Adolf_Eichmann
NATURAL LAW PERSPECTIVE

Bix5 states that naturalists consider a legal system as that which is moral, just and for the common

good. Finnis reiterates this by arguing that a ruler solely derives his authority from the needs of

the common good. He further identifies three criterias for assessing the common good as:

 Distributive justice

 The function of the law

 The capacity of the law to advance both the individual and the society at large.

This therefore means that when a ruler uses his authority to make laws which are against the

common good or the basic principles of practicable reasonableness, these laws will lack the

authority they would otherwise have by virtue of being his.6

Thomas Aquinas posited that just law is that which serves the common good, fairly distributes the

burdens and obligation of the law on the citizens, promotes religion and is within the bounds of

the law makers’ authority. To him, arbitrary laws do not have the power to bind the moral

conscience of its citizen and thus the citizenry ought not to obey it.

Fuller says that law can only be valid if it conforms to the internal7 morality of law.8 It has eight

principles namely:

1) Laws must exist

2) Laws must be promulgated and published

5
Brian Bix , Jurisprudence: Theory and Context, 4th Edition, Sweet & Maxwell, London (2006)
6
M.D. A Freeman, Lloyd’s introduction to Jurisprudence, 7th edition (London sweet & Maxwell ,2001),pg 126;
7
It is internal because it is embedded in the concept of law
8
Professor Herlinde Pouer-studer, “Separation of Law and Morals: a debate about legal validity and its
implications for moral criticism” University of Wien, Institue of Philosophy Available at httt://www.
unet.univie.ac.at/.../Hlawatsch-Separation_of_law_and_morals <accessed on 22/12/2014>
3) Laws must be sufficiently prospective

4) Laws must be understandable

5) Laws must not contradict each other

6) Laws must not require the impossible

7) Laws must not change too rapidly

8) Laws must be enforced by officials

According to Fuller, the full compliance of these principles is in itself a moral ideal for the common

good. The laws that legislators make acquire their status as law due to fundamentally accepted

rules specifying essential law making procedures9 and which contributes to good order.10

Fuller has been criticized because a regime would observe the internal morality of law and enact

bad laws for instance the Nazi regime enacted bad laws which Eichmann was merely enforcing.

However, Fuller responds by stating that a regime displaying brutal indifference to justice and

human welfare is unlikely to exhibit a genuine respect for the principles of legality11.

Naturalists would argue that the man-made laws of the Nazi regime contravened the basic tenets

of natural law12and thus are invalid, illegitimate and not binding. Thus, Eichmann and other Nazi

soldiers acted contrary to the laws of nature.

POSITIVISM PERSPECTIVE

Legal positivism argues that the existence and content of law depends on social facts and not on

its merits.13In support of this, John Austin said,” The existence of law is one thing; its merit and

9
n7
10
Ibid
11
N.E Simmonds, Central issues in jurisprudence; justice law and rights (Sweet & Maxwell , 2008) pg. 258
12
Natural law is the primordial moral sense which enables man to discern right from wrong.
13
http://plato.stanford.edu/entries/legal-positivism/(Accessed on 22/12/2014)
demerit is another. Whether it be or not be is one enquiry; whether it be or be not conformable to

an assumed standard is another, is a different enquiry. A law, which actually exists. is a law, though

we happen to dislike it, or though it vary from the text, by which we regulate our approbation and

disapprobation.”14

Positivists do not say that merits of law are unintelligible or unimportant. They argue that they do

not determine whether laws or legal systems exist. Whether a society has a legal system depends

on the presence of certain structures of governance and not on the extent to which it satisfies ideals

of justice, democracy, or the rule of law.

The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for

thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is

never sufficient reason for doubting it. According to positivism, law is a matter of what has been

posited thus positivists are of the view that law is a social construction.

By mid-twentieth century, however, this account had lost its influence among legal philosophers.

Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such

as courts, and its insistence on the role of coercive force gave way to theories emphasizing the

systematic and normative character of law.15

Legal positivism is thus an effort to establish the nature of law, disentangled from proposals and

prescriptions for which laws are passed or how legal practice should be maintained or reformed.

Accordingly, positivism's critics maintain that the most important features of law are not to be

found in its source-based character, but in law's capacity to advance the common good, to secure

human rights, and to govern with integrity. It is a curious fact about anti-positivist theories that,

14
Summary of legal positivism from a few lines stated in 1832, Page 157 by John Austin (1790-1859)
<http://plato.stanford.edu/entries/legal-positivism/>/(Accessed on 22/12/2014)
15
The key proponents were: Hans Kelsen ( 1881-1973), H.L.A.Hart and Joseph Raz
while they all insist on the moral nature of law, without exception they take its moral nature to be

something good.

b) In view of Adolf Eichmann's defence that he was merely following lawful

orders, should he have been found guilty?

Eichmann’s defence was grounded on positivism. He argued that his actions had been permissible

under the Nazi Regime’s legal system and that what he did as a member of the Nazi regime was

not a crime but simply actions of a law abiding citizen.

For a society to have a legal system, it must have certain structures of governance and the extent

to which it satisfies ideals of justice, democracy, or the rule of law should not be considered.

John Austin perceived a legal system as a command by a sovereign to its citizens backed by

sanctions or threats. A sovereign is a person or entity that is habitually obeyed from the bulk of a

given society and has no obligation to abide to any entity or person.16

On the other hand, Hart stated that a legal system to exists when two conditions are present.

Officials must accept and apply the basic rule of recognition17 from an internal point of view which

is a set criteria that officials use to determine the validity or otherwise of a rule in a legal system.

The populace must also generally obey valid rules18. To be valid, a rule must emanate from a source

identified by the basic rule of recognition. Thus, the validity of law is based on its source and not

on its merits. This is construed to mean that the validity or otherwise of law is independent of

morality and its existence is not subject to whether or not it is accepted or applied by all. An

16
Brian Bix , Jurisprudence: Theory and Context, 4th Edition, Sweet & Maxwell, London (2006) pg. 39
17
This is a secondary rule ( A rule which governs the operation of the rule system itself and includes the rule of
change and rule of adjudication as stated by Brian Brix at pg 38 – 39 )
18
N.E Simmonds, Central issues in jurisprudence; justice law and rights (Sweet & Maxwell , 2008) pg. 157; the society
in the legal system must take the said rules as an obligation rather than mere habitual obedience and the system must
have been accepted by citizens.
effective legal system is fundamental to the existence of a valid rule19. Guided by Hart’s view, the

Nazi law of racial cleansing is valid since it fulfilled the basic requirements of the rule of

recognition regardless of not being accepted by Jews and the Israeli government.

Kelsen perceives the legal system as being made up of a hierarchy of norms. He asserts that a norm

is valid if a higher norm authorised the making of the lower norm and that it was made according

to the higher authorising law20. To Kelsen, the ‘grund norm’ confers validity on the system as a

whole and not the existence of another positive rule of law.21

Kelsen’s theory is therefore independent of morality. It does not matter which particular grund

norm is adopted by a legal order. All that matters is that this basic norm has minimum effectiveness

that is it must command a certain amount of obedience, because for a norm to be valid there must

be effectiveness of the total legal order. Hence , the application of a grund norm by the society

depends on the fundamental assumptions made by the members of that society. It is for this reason

that Eichmann perceived the Nazi rules as valid and enforceable because they emanated from a

decree passed by his president and the legislature.

Hart found weakness in the command theory because to him, regularities of behaviour are

determined by the participant's attitudes. He notes that rules have additional roles of giving

explanations, justifications and a basis for criticising deviation.22

Thus regarding Eichmann's case, it is prudent to determine whether his actions were legally

justifiable and if his defence was a proper explanation sufficient to vindicate him and ultimately

whether the court's judgement was correct.

19
Ibid
20
n 16
21
ibid pg 59
22
Scott J. Sharpiro, "The Difference that Rules Make", in Analyzing Law (Brian Bix ed., Clarendon Press, Oxford,
1998), pp33-62.
The answer lies with the rule of recognition. Law is a human creation meant for human purposes

and requiring human participation. To understand a social system, we need to understand how the

people who created the system or who participated in the system perceived it. In light of the facts

of Eichmann's case, I am compelled to invoke the hermeneutic approach.23Eichmann oversaw a

fundamental change in policy from voluntary emigration to forced deportation when he presented

his Madagascar Plan, proposing to deport European Jews to the island of Madagascar.

Thomas Jefferson developed some principles for determining whether an absolute tyranny

occasions an unjust or immoral law24as:

 That he takes away our charters, abolishing our most valuable laws, and alters

fundamentally the forms of our governments

 That he suspends our own legislatures and declares himself invested with power to

legislate for us in all cases whatsoever.

 That he has abdicated the existing government, by declaring us out of his protection and

waging war against us.

Having critically examined the facts of Eichmann’s case, Eichmann committed the following:

1. He declared himself invested with power to legislate for the Nazi people by overseeing a

fundamental change in policy from voluntary emigration to forced deportation. He and his

team were also responsible for the dumping of thousands of Poles and Jews from the

Warthegau, and the expulsion of thousands of Jews from the Reich to Nisko, in eastern

23
Giving priority to understanding how other people perceive their situation.
24
http://www.monticello.org/site/jefferson/transcript-declaration-independence-final (Accessed on 22/12/2014 )
 Poland.

2. His actions and omissions led to the taking away of Nazi’s charters and abolishing most

Nazi’s valuable laws.

CONCLUSION

In light of the foregoing, i totally agree with the guilty verdict of the judges in Eichmann’s trial

because the laws and rules of the Nazi regime contravened the natural law of ‘thou shall not kill’

which is discernable by reason and human intellect.Contravening natural law in my view rendered

the nazi laws unjust and according to the accepted maxim “unjust law is not law at all” Thomas

Aquinas reiterated this maxim by stating that the citizenry ought not to obey a law which is unjust

and that arbitrary laws do not have the power to bind the moral conscience of its citizen. Thus

Eichmann’s defence that that he was merely following lawful orders is not viable and the Court

was in my opinion justified and correct in finding him guilty on all the charges preferred against

him.
REFERENCES

1. Freeman M.D.A ‘Lloyd’s Introduction to Jurisprudence’ (2001), 7th Ed, London: Stevens

& Sons

2. Brian Bix, ‘Jurisprudence: Theory and Context’ (2006) 4th Ed, Sweet & Maxwell, London,

UK.

3. N.E Simmonds, Central issues in jurisprudence; justice law and rights (2008), sweet &

Maxwell

4. Raymond Wacks, understanding jurisprudence, (2012) 3rd edition oxford; oxford press

5. Fuller, Lon ‘The Morality of Law’ (1969) revised ed., Yale University Press, London.

6. Jeremy Bentham, Of Laws in General (H.L.A Hart. ed., Athlone, London, 1970); H.L.A.

Hart, Essays on Bethnam (Clarendon Press, Oxford, 1982)

7. Scott J. Sharpiro, "The Difference that Rules Make", in Analyzing Law (Brian Bix ed.,

Clarendon Press, Oxford, 1998)

8. https://danieljmitchell.wordpress.com/2011/08/23/are-we-obligated-to-obey-unjust-laws/

9. http://en.wikipedia.org/wiki/Adolf_Eichmann

10. http://plato.stanford.edu/entries/legal-positivism/

11. http://www.monticello.org/site/jefferson/transcript-declaration-independence-final

12. Professor Herlinde Pouer-studer, “Separation of Law and Morals: a debate about legal

validity and its implications for moral criticism” University of Wien, Institue of
 Philosophy Available at httt://www. unet.univie.ac.at/.../Hlawatsch-

Separation_of_law_and_morals

13. Summary of legal positivism from a few lines stated in 1832, by John Austin (1790-1859)