What does moral justice mean

Requirements for morality and justice in laws

content

1. Definition of positive and natural law
1.1 Definition of terms: positive law / legal positivism
1.2 Definition of terms: natural law
1.3 Interdependence between legal positivism and natural law theory

2. Dealing with the theory of legal ethical normativism according to Hart
2.1 Overview of legal ethical normativism
2.2 Interdependence between law and morality

3. Requirements for just judgments and punishments

4. Conclusion

5. Bibliography

Preface

“We only live in the shadow of the idea of ​​justice” [i], Plato made this statement several thousand years ago and it is still valid today. The question of just or moral laws arises today more than ever. Hundreds of different forms of government with different legal conceptions exist on our earth, from democracies to dictatorial regimes. All these forms of government draft and enforce different laws. But how can it be possible that laws are locally and temporally different?

The UN Court of Justice deals with this very question more often by judging heads of state whose laws are not based on natural law. What conditions must be met for laws to be morally correct and in harmony with natural law? This question should be clarified in the following work, taking into account moral-philosophical approaches. Furthermore, a discussion of the terms positive and (Kriele, 2004) natural (superpositive) law must take place, since the question cannot be discussed without a precise definition of the term. The main focus here is on Hart's theories and how he deals with the legal ethical normativism be judged.

Finally, the death penalty is to be examined for its moral character under the conditions discussed above.

1. Definition of positive and natural law

1.1 Definition of terms: positive law / legal positivism

"The positive right arises from the discretion of a legislator and is therefore neither through a reference back to the ius divinum (Divine law) is legitimized by a bond with a right that is equally comprehensive and therefore naturally applicable to all people (natural law). "

This definition of positive law by Wikipedia contains two main characteristics of positive law: Sole legitimation by a legislator and no global or temporal validity. However, such a basic conception of positive law is very one-dimensional. In order to be able to deal more closely with the theory of positive law, the theories of legal positivism will be examined in more detail below.

Legal positivism defines the basis of positive law independently of "a reference to content and parallelism to non-legal sources of legal knowledge"[1]. This definition leads to positive law being valued independently of its moral content. In his book “Reine Rechtslehre”, Kelsen makes it clear that it is not the task to “legitimize the law as just or to disqualify it as unjust”[2], but merely to "grasp it and to understand its structure through an analysis"[3]. The core of positive law is to maintain the order of a constitutional state. For him, it is sufficient "legal creation, enforcement or effectiveness for the identification of social norms"[4] to be recognized as the basis for case law. What level of justice is contained in various positive rights is initially irrelevant for the legal positivists, since "every state (...) is a constitutional state"[5] and thus the positive laws of the state are legally valid. The idea of ​​an “unjust state” was consistently taken further after the crimes of the Third Reich and led to the question of when positive law should no longer be valid.

1.2 Definition of terms: natural law

“Natural law is to be understood as the law that is derived from human nature and that is recognizable from human reason. It is therefore valid for all times. "[6]

This conception of a form of law, which can be consulted as a higher authority when assessing laws, is necessary in order to determine the legal character of applicable law. Radbruch even goes so far in his formulations that he has laws that to a large extent of "injustice and public harm"[7] testify denies their legal character. Such an infringement must inevitably result in the applicable law no longer being regarded as legally valid. Those rights that were formulated on the basis of reason (right of reason) cannot lose their validity, as they do not tolerate “injustices and common detriments” in any conceivable scenario. This natural right has crystallized over the centuries of human history and has been written down in many constitutions (Bill of Rights, GG, UN Human Rights)[8]. Natural law is generally understood as global and timeless. Hugo Grotius also formulated four basic guidelines for the law of nature and reason: "Do not kill or injure anyone [...], respect property and keep contracts"[9]. Kant speaks here of the “autonomy of the will”, which grants every individual that freedom that everything is congruent with freedom.

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[1] (Duden, 2007)

[2] (Kelsen, 2008)

[3] (Kelsen, 2008)

[4] (Duden, 2007)

[5] (Kriele, 2004)

[6] (Radbruch, September 12, 1945)

[7] (Radbruch, September 12, 1945)

[8] (Kriele, 2004) cf.

[9] cf. (Hörster, 2003)

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