Now, to say that human laws which conflict with the Divine legislation aren’t binding, that is to say, aren’t laws, is to speak stark nonsense. Classical natural regulation theory akin to the speculation of Thomas Aquinas focuses on the overlap between natural law ethical and authorized theories.
Authorized validity is basically relative to the social information that represent the content material of the essential norm in each authorized order. Instead of offering an explanation of what makes the presupposition of the legal standpoint rational, or what makes it rational to treat the requirements of law as binding necessities, Kelsen invites us to cease asking.
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign underneath the penalty of dying; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court docket of Justice will exhibit the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I’ve impugned the validity (Austin 1995, 158).
Any given norm could be legally valid even if no one follows it. (e.g. think about a new legislation, just enacted; it’s legally valid even when nobody has but had a chance to comply with it.) Nonetheless, a norm can only be legally legitimate if it belongs to a system, a legal order, that is by and huge actually practiced by a sure population.… Read More