For my required freshman writing class this semester, I chose "Issues in Law and Social Justice." Sounds pretty boring, but at the same time extremely intriguing. Just earlier today we handed in our first paper. The topic was: to which does one owe greater deference: law or personal morality? This was question extremely hard to answer, especially in today's political climate, law and morality do not always align. Amidst my research, I found two interesting concepts that are fun to ponder: legal positivism and natural law.
Legal positivism is a concept that I found to be the closest to what American politics follows. It basically derives from three theses that state that 1) a law is only valid when it's enforced by an institution with consequences, 2) law doesn't necessarily have to derive from morality, and 3) legal precedents are set by judges who reach outside of written law to decide cases. Sounds familiar, doesn't it?
Natural law, on the contrary, is all about morality. It is formed from two theories of natural law, one of morality and the other law. The theory of morality says that doing good by mankind is realizing a purpose. More specifically a purpose that promotes happiness, through rationality, abstract knowledge, free choice, imagination, friendship, and social cooperation--all based on a sense of justice. It also rejects ethical subjectivism and accepts ethical objectivism. The prior means that morality is defined by each person, and the latter implies that some morality is good and other is bad because morality is defined as a consensus of cultural values. The theory of law says that unjust laws are not laws at all, but just perversions of justice. It also says that we have no legal or moral responsibility to follow those laws that conflict with natural law.
Now with this knowledge in mind, think about some legal issues in society. Let's think about the border wall, from a legally positive perspective the wall is, without objection, totally fine. Leaving morality out of the picture, no problems arise. However, natural law despises the border wall. There are so many moral objections to the creation of this division. Not only are people actually dying in the countries that they are fleeing, they are also dying at the wall itself. What is more immoral, denying refugee's asylum? Or allowing them to die by not intervening?
Of course no situation is obviously good or bad, and political, economic, social, and environmental issues complicate what society defines morality as. Despite this, we as a society need to look at our methods for creating legislating. Democracy is thought to best express the values and morality of the constituents, but morality is constantly failed by this system of government. The wall stands (figuratively and literally) as a symbol for how law isn't always what is moral, and issues of civil rights, like trans people in the military, represent the injustices that are still faced by so many today. Natural law says that human good is based in social cooperation, and so many events in the American government show day by day that we do not only lack cooperation, but we reject it.
