Natural Law & Legal Positivism

1. How does M.L. King argue that segregation laws are unjust? 

M.L.K. argues in terms of natural law, that all segregation statues are unjust. Segregation distorts the soul and damages the personality, giving false value judgements of superiority and inferiority to, oppressor and the oppressed. He invokes Martin Buber, "segregation substitutes an "I-it" relationship for the "I-thou" relationship...relegating persons to status of things". (Adams 80) Segregation is morally wrong, therefore unjust.

Also invoking a type of categorical imperative he says, "An unjust law is a code that a majority inflicts on a minority that is not binding on itself." (Adams 81) He is arguing also that Blacks and other oppressed minorities did not receive their right to vote on policies, laws and practices in which segregation is brought about in their common living space.

2. Why, according to King, should we disobey unjust laws? 

 

 King invokes St. Augustine and St. Thomas Aquinas' natural law theory, "An unjust law is no law at all". (see question # 3)

3. How does Aquinas determine if a law is just or unjust? 

Aquinas erects eternal law (morality) as the highest form of law. He then sets up a natural law and human law, subordinate to this eternal law. He considers morality to be a form of eternal law. If a human law is in discord with a natural, or eternal law; it is unjust. If it is an unjust law, it has no business being a law.

4. How would a Legal Positivist judge segregation laws? 

It's not so clear, though they are likely to use a utilitarian calculation to see whether its a beneficial law. The main difference between a Natural Law theorist and a Positivist, is their opinion on whether law should be logically tied with/without morality. A Positivist claims that laws could coincide with morality, though it is not necessarily so. 

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Part II: Legal Positivism & Unjust Laws 

MLK is quoting Augustine when he says, "An unjust law is no law at all". This view argues that legal systems ought to be aligned perfectly with morality. A law must be also the true moral thing to do. However, Legal Positivism disagrees, claiming that a "Positive Law" should take the place of "Natural Law", so long as it can satisfy the main condition a legal system is created to solve-justice. Austin thinks that this positive law can come in the form of commands by superior ranking individuals because a law is, "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him". (Adams 49) In this view, an act may have legal justification but no moral one; another act may have moral justification but no moral one. 

I'm not sure that Legal Positivism refutes Augustine, but it surely disagrees with it. I find no justification for Austin's "command theory"; what gives one the justification to force compliance from another? It seems like only force that establishes this type of an authority. I have less problems with Hart, as he disagrees with the command theory but holds onto the seperation thesis that (One can have legal right but no moral right).