Tutorial 6

1. Briefly discuss the maxim lex iniusta non est lex.

The laws were designed to keep Justice in the land it governs for the safety of the people who
live there while an unjust law is not true justice because a just law is a law that is fair and
balanced for people being governed. Laws exist to preserve justice in society, so if a law is
unjust (unfair), then it defeats the whole purpose of having a law in place at all. How do you
defend a law that promotes jungle justice, a law that aids rape or a law that seeks to protect
armed robbers? The sole essence of law is for serene and peaceful environment. Like we have
in an ancient proverb that a place without sin automatically has no punishment, it
automatically says where there is no law, there is no sin, and if crimes and offences do not
amount to sin because of absence of law in a particular society, we can easily sense how
deadly and dangerous such society will be. Same applies to laws that are unjust and immoral,
laws that promote offences against human existence, for example, a law that promotes
syphoning public funds or a law that serves as an escape route or shield for criminals.

Lex iniusta non est lex (an unjust law is no law at all), is a regular legal saying. It originates
with St. Augustine and was used by St. Thomas Aquinas . This view is strongly associated
with natural law theorists, including John Finnis and Lon Fuller . An unjust law is no law at
all,” is a quote by St. Augustine that Martin Luther King, Jr., used in his letter responding to
the letter of the eight white clergymen. The quote is King’s defense for his act of disobeying
the law of segregation. King’s letter explains why there is injustice in segregation and calls
for justice from these laws. The letter effectively uses examples of the laws to justify his
action. Also, other examples include the Church and God, as well as examples of common
sense to convince the Christian group and the middle and educated class to follow his actions
and faith. Responding to the accusations of the letter on breaking the laws, King gives facts
and examples to justify his actions. He replies, the reason for him of disobeying the law of
segregation is that he has simply obeyed the Supreme Court’s decision of 1954 outlawing
segregation in public school. However by obeying the court’s decision, he is breaking the
laws of segregations. Thus the two are in contradiction with each other. King then asks, how
can people know which law is to obey and which is not to? He reveals that there are two
types of laws: just and unjust. Using the words of St. Thomas Aquinas, King explains and
gave definition to unjust laws. He said that “Any law that degrades human personality is
unjust.” The King also reasons that an unjust law is law that “one has a moral responsibility
to disobey unjust laws,” such as laws of segregations. Segregation makes black people feel or
even believe that they are inferior to white people. Contrary, it also makes white people feel
that they are the superior, whereas black and white are all human beings and should be
treated the same.

Finnis correctly emphasizes that a law’s injustice does not necessarily deprive that law of all
legal validity even though its injustice may deprive it of moral obligation. The injustice of a
law may be argued to deprive that law of obligatory power in the “intrasystemic sense,” in
which, for example, the Constitution itself may incorporate standards of justice. Another
manner in which Finnis examines the question whether the injustice of a law affects the
obligation to obey it arises when a nation’s highest court has ruled that an allegedly unjust
law is not unjust or, if unjust, that it is still binding law. The question in its third sense
therefore arises in clear-cut form when one is confident that the legal institutions of one’s
community will not accept that the law in question is affected by the injustice one discerns in
it. The question can be stated thus: Given that legal obligation presumptively entails a moral
obligation, and that the legal system is by and large just, does a specific unjust law enforce
upon me any moral responsibility to obey to?

When we discuss unjust laws, we cannot but discuss morality and conscience and so also, the
God factor comes into place. Any law that is not just, repugnant to clear conscience and
natural justice is no law and should be disregarded, and if such law is enforced, the society
where such is enforced should come together and get the law repealed either by referendum
or by choosing new leaders that will tow the path of reasoning. What it means is that there is
such a thing as a higher law.

There is a set of ideals that all people should try to follow and a set of rights that all people
have, regardless of whether their governments give them those things. An unjust law is not
legitimate and there can be no moral reason that you should have to follow that law that is
unjust and repugnant to clear conscience. What can make a law unjust? Many reasons and
defects can make a law unjust, any law that tends to raise a religion above the other can be
taken to be unjust because such a law can create unrest and aid religious intolerance. Any law
that seeks to promote inhumane policies such as slavery and servitude can be said to be unjust
although in certain situations, the essence of such law can be defended by the government.

A law can be just in a region and unjust in another region, take for instance the legalisation of
gay marriage in the United States of America and its outright rejection in Arab world simply
because the Arabs are morally intensified and culturally sophisticated, the tenets of man
above woman etc. would never allow such law to be made just in any Arab nation

2. Explain the following concepts:

a. Distributive justice;
Distributive justice is a concept that addresses the ownership of goods in a
society. It assumes that there is a large amount of fairness in the distribution
of goods. Equal work should provide individuals with an equal outcome in
terms of goods acquired or the ability to acquire goods. Distributive justice is
absent when equal work does not produce equal outcomes or when an
individual or a group acquires a disproportionate amount of goods.
As one could probably see in the definition of distributive justice, there are
many principles at play. This lesson will focus on three: equality,
proportionality and fairness.

Distributive justice is a key ethical principle that applies to the provision of

social goods including public health services. Health services are an
instrumental, rather than an absolute, good in that they are not good in and of
themselves, but only insofar as they facilitate survival, human dignity, and
full citizenship. The principle of distributive justice requires that health
services be accessible to individuals according to need and within the context
of resource availability. When there are barriers preventing access
to contraception and abortion, distributive justice is compromised. Access to
health care is often stratified by race, class, and region. This is also true for
access to abortion and contraception. Many factors compromise access to
fertility control, including material considerations, cost, availability, and
religious or national policies.
Access to safe contraceptive and abortion services requires sufficient
regulation of providers and manufacturers to ensure safe services. However,
a highly regulated environment can compromise services. In some
jurisdictions, regulatory mechanisms retard or restrict the distribution of
contraceptives and medications and devices used for postcoital contraception
and abortion. Currently this restriction exists in some countries in relation
to misoprostol, despite this drug being included on the World Health
Organization's (2005) list of essential medicines for developing countries.
Access to contraception and abortion is also compromised when services are
under attack, and when service providers and/or patients are intimidated and
stigmatized. The marginalization of abortion services from mainstream
health provision produces further barriers to access. These include difficulties
in recruiting, training, and sustaining a skilled workforce, any of which may
compromise the quality of services.
Stigma associated with abortion and contraception creates an environment in
which normal requirements for duty of care by medical practitioners can be
compromised. For example, where law or practice allows health workers
conscientious exemption, those practitioners who decline to provide services
still have an ethical obligation to refer the patient for these services
elsewhere.

b. Commutative justice;
Commutative justice refers to that which is owed between
individuals, such as in conducting business transactions.
Commutative justice calls for fundamental fairness in all
agreements and exchanges between individuals or private social
groups. It is distinguished from other forms of justice, such as
contributive justice, which refers to what individuals owe to
society for the common good; legal justice, which refers to rights
and responsibilities of citizens to obey and respect the rights of all
and the laws devised to protect peace and social order; and
distributive justice, which refers to what society owes to its
individual members, i.e., the just allocation of resources.
Restitution in moral theology signifies an act of commutative
justice by which exact reparation as far as possible is made for an
injury that has been done to another.

c. Procedural justice, and

Procedural justice focuses on the way police and other legal authorities interact with
the public, and how the characteristics of those interactions shape the public’s views
of the police, their willingness to obey the law, and actual crime rates. Mounting
evidence shows that community perceptions of procedural justice can have a
significant impact on public safety.

Procedural justice is based on four central principles: "treating people with dignity
and respect, giving citizens 'voice' during encounters, being neutral in decision
making, and conveying trustworthy motives."  Research demonstrates that these
principles contribute to relationships between authorities and the community in which
1) the community has trust and confidence in the police as honest, unbiased,
benevolent, and lawful; 2) the community feels obligated to follow the law and the
dictates of legal authorities, and 3) the community feels that it shares a common set of
interests and values with the police.

Procedurally just policing is essential to the development of good will between police
and communities and is closely linked to improving community perceptions of police
legitimacy, the belief that authorities have the right to dictate proper behavior.
Research shows that when communities view police authority as legitimate, they are
more likely to cooperate with police and obey the law.  Establishing and maintaining
police legitimacy promotes the acceptance of police decisions, correlates with high
levels of law abidingness, and makes it more likely that police and communities will
collaborate to combat crime. 

A key component of the research is that the public is especially concerned that the
conduct of authorities be fair, and this factor matters more to them than whether
outcomes of particular interactions favor them. This means that procedurally just
policing is not consonant with traditional enforcement-focused policing, which
typically assumes compliance is a function primarily of emphasizing to the public the
consequences—usually formal punishment—of failing to follow the law. Policing
based on formal deterrence encourages the public’s association of policing primarily
with enforcement and punitive outcomes.  Procedurally just policing, on the other
hand, emphasizes values that police and communities share—shared values based
upon a common conception of what social order is and how it should be maintained—
and encourages the collaborative, voluntary maintenance of a law-abiding
community. Research indicates that this latter approach is far more effective at
producing law-abiding citizens than the former. This makes intuitive sense— people
welcome being treated as equals with a stake in keeping their communities safe, as
 opposed to being treated as subjects of a capricious justice system enforced by police
who punish them for ambiguous, if not arbitrary, reasons.

Taking measures to enhance procedural justice within law enforcement agencies is

becoming increasingly possible. Professor Tracey Meares and Professor Tom Tyler of
Yale Law School have worked with the Chicago Police Department and others to
create a one-day training for line officers and command staff that teaches them how to
apply powerful procedural justice principles to their routine contacts with the public.
The officers reportedly like it and evaluate it positively, as it improves not only public
safety but their own. Indeed, there are many good reasons to cultivate a respectful
relationship between police and communities, but the most important is that
communities in which police are considered legitimate are safer and more law-
abiding.

d. Legal justice.
According to legal justice, the State may institute just laws and perform such acts as further
the welfare of the community. Thus import duties, fire and traffic regulations, anti-pollution
laws, and similar provisions of the State concern legal justice.