Validity and obligation of law according to the relationship between Law and Morality from Aquinas and Hart's point of view

Document Type : Research Paper

Author

Assistant Professor of Ardabil Islamic Azad University

Abstract
This article was written with the aim of investigating the validity and obligation of law according to the relationship between Law and morality in Aquinas and Hart's thought. In this article, information was collected by library method and analyzed by content analysis method. The results indicated that in Aquinas's thought, moral validity is a necessary condition for legal validity. Therefore, any law that is unjust will not be valid and the moral duty of citizens is not to obey such a law. but Hart does not consider such a condition necessary for the legality of law. According to Hart, law and morality can be related in two ways: one is Transverse, which includes the acceptance of moral principles in the rule of recognition and compliance with the minimum content of the laws from an moral point of view. The other is the Inherent relationship, which was the observance of the formal justice of the law, which meant similar treatment with similar cases. Such an attitude is not incompatible with the principles of positivism because it is only a formal aspect. Based on this both Aquinas and Hart acknowledged the role of morality in law, however, there was a difference in the way they analyzed and viewed this issue, so that unlike Aquinas in Hart's view, the lack of moral validity does not lead to the invalidity of the law although it can be he called a law a bad law

Keywords

Subjects

Aquinas, St Thomas. (1947). The Summa Theologica. Translated by Fathers of the English Dominican Province: Benziger Bros. First Edition.
Austin, John. (1995). Austin: The Province of Jurisprudence Determined. Cambridge: Cambridge University Press.
Bradley, Raymond. (1975). "The Relation between Natural Law and Human Law in Thomas Aquinas." Cath. Law, vol. 21, pp. 42-55. https://scholarship.law.stjohns.edu/tcl/vol21/iss1/5
Brewbaker III, William S. (2006). "Thomas Aquinas and the Metaphysics of Law." Ala. L. Rev, vol. 58, pp 575- 614. http://dx.doi.org/10.2139/ssrn.898941 
Chroust, Anton-Hermann. (1944). "The Philosophy of Law of St. Augustine." The Philosophical Review, vol. 53, no. 2, pp. 195-202. https://doi.org/10.2307/2182025
Dworkin, Ronald. (1986). Law's Empire. Cambridge: Harvard University Press.
Frankena, William K (1962). The concept of social justice. In R. B. Brandt (Ed.), Social justice (pp. 1 – 29). Englewood Cliffs, NJ: Prentice – Hall.
Hart, Herbert Lionel Adolphus; Leslie Green. (2012). The concept of law. Oxford: Oxford university press.
Hart, Herbert Lionel Adolphus. (1983). Essays in Jurisprudence and Philosophy. Oxford: Oxford university press.
Hawkins, Denis John Bernard. (1947). A Sketch of Mediaeval Philosophy. New York: Greenwood Press.
Leiter, Brian; Michael Sevel. (2015). Philosophy of Law. Encyclopædia Britannica. https://ssrn.com/abstract=2574486
Mittal, Monarch. (2022). "John Austin’s Theory of Command Law: Its Practicality in Today’s World." http://dx.doi.org/10.2139/ssrn.4157659
Murphy, Joseph. (2006). "Book Review: Aquinas's Summa: Background, Structure and Reception." Irish Theological Quarterly, vol. 71, no. 1-2, pp. 193-94. https://doi.org/10.1177/0021140006072597 
Starr, William C. (1983) "Law and Morality in Hla Hart's Legal Philosophy." Marq. L. Rev, vol. 67, 1983, pp. 673-689.
Stumpf, Samuel E .(1960). Austin's Theory of the Separation of Law and Morals. Vanderbilt Law Review,14, pp. 117-149. https://scholarship.law.vanderbilt.edu/vlr/vol14/iss1/6
Tan, Seow Hon. (2002). "Validity and Obligation in Natural Law Theory: Does Finnis Come Too Close to Positivism." Regent UL Rev, vol. 15, pp. 194-221. https://ink.library.smu.edu.sg/sol_research/700[1]*