What is Law? First Suggestion:

Natural Law Theory

Quick Review of Butler:

Q. Did the court get the decision right?

It matters whether the court got things right:

* if it is is right, then it seems clear that we have an obligation to obey the law

Q. And if the court got it wrong?

* then we have a bad law, and those who disagree with it may not feel an obligation to obey (even if they are afraid to disobey because of possible penalties)

General idea behind "Natural Law Theory":

* there are certain, independent standards to which the law must conform if it is really going to count as "LAW"

*the law has authority because these standards are recognized to have authority

Distinction between "natural law" and "positive (or human made) law"

*descriptive v. normative rules (is v. ought to be)

*sometimes we need rules:

Driving on the right side of the road: it doesn't matter so long as everybody does the same thing. Rules preserve safety

BUT: rules must not discriminate

Example: blonde child comes home complaining that the teacher has made a rule forbidding blonde children from studying math.

Child complains that this is unjust, that the rule is really no rule at all.

Father replies that the teacher has the authority to make the rules, so it is no good complaining

Child replies that this is unfair. Stomps foot.

Father asks: so are you going to disobey the rule? Child goes ????????

Real life example:

The Nazi Germany: Nuremberg laws

Jews not allowed to own property, not allowed to marry non-jews, etc. Eventually concentration camps.

Is there an obligation to obey this law?

If not why not?

Is it because it is BAD law, or is it because it is so bad, so unjust that it ends up NOT being law at all?

Question: so what is the connection between law and morality?

Is law valid (binding or obligatory) when it conforms to morality?

Consider connection between morality and Charter of Rights and Freedoms

Basic freedoms, legal rights as moral considerations

Cases, also, full of moral considerations: harm, etc.

Consider s.1 of the Charter: allows restrictions of Charter rights and freedoms that are demonstrably justified in a free and democratic society. Is this a (kind of) moral requirement?

Presuppositions of natural law theory:

The existence of some body of natural law that is accessible to people and against which human or positive laws can be measured.

This body of natural law is will have to be unchanging, same for all people at all times, and discoverable by reason

Failure to live up to the standard means that the law is really law in name only: it is NOT VALID OR LEGITIMATE

A BIG problem:

LOTS of disagreement about what is moral or authoritative

More on this next time