Natural law is usually defined by the thesis that there is a necessary connection between law and morality. Positivists believe that this thesis implies that all unjust laws are invalid. Lex iniusta non est lex: unfortunately, this maxim has given rise to a number of misunderstandings. Positivists use the saying to attribute to natural law a thesis that nobody has ever actually argued. Our aim in this article is to clarify the origins of this misunderstanding and to show how contemporary natural law theories are attempting to clear up the confusion created by this maxim. Natural law theory does not necessarily dispute the validity of unjust laws but, using the “focal meaning” of legal concepts, provides a means to understand how such laws are both legally and morally defective.
In modern legal thinking, natural law is often presented as a legal theory based on a necessary connection between law and morality. This thesis implies that an unjust law is not legally valid and is not law. Hence, Gustav Radbruch believes that national socialist law was not only unjust law but not law at all, because “where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law,’ it lacks completely the very nature of law.”Lex iniusta non est lex: this maxim has become a core part of the debate between legal positivism and natural law. It is also the source of a misunderstanding that natural law theories should endeavor to dispel. If this saying means that the legal order cannot include unjust laws or that a law ceases to be valid if it is either deemed immoral or contrary to ideal law, then it must be judged absurd. The positivists’ main aim in quoting this maxim is to discredit the concept of natural law. However, their use and interpretation of the saying do not correspond at all with the theses of natural law, and their criticisms are frequently aimed at a fictitious enemy that they themselves have created. This misunderstanding has created a rigid formal divide that the philosophy of law has found it difficult to abandon. On one side of the divide are those scholars who believe that unjust laws are not law. On the other side are the positivists who, in the name of the separation of law and morals, insist that unjust laws can be valid even if people are not morally obliged to obey them…
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