وبلاگ

For example, customary law is positive law shaped by judicial legislation based on pre-existing customs. Well, until they become the basis of judicial decisions in cases and are clothed by the sovereign or sovereign with legal sanctions, customs are only rules fixed by the opinions of the governed and morally sanctioned or enforced. However, if they become grounds for judicial decisions in cases and are vested by the sovereign with legal sanctions, customs are rules of positive law as well as positive morality. However, since customs were observed by the governed before being sanctioned by the sovereign or ruler, it is assumed that customary law exists as positive law through individuals from whom the customs originate. If we allow imagination and argue by analogy, we should consider the sovereign as the author of positive morality, which is often a consequence of positive law. When a positive law, which is not based on custom, is well received by the governed and strengthened by their opinions or feelings, we must regard the so-called law, which is determined by these opinions or feelings, as a law commanded by the highest political superior. (2) Laws are wrongly called thus: they are laws that are not orders. For example, laws by analogy as laws of fashion, laws by metaphors, that is, laws of gravity. Now, there is a great distinction between laws that are mistakenly called that. Some are close, others are distant, analogous to real laws. The term law is extended to some by a decision of reason or agreement.

The concept of law is extended to others by a twist or a whim of imagination. I believe I have now checked all the categories of objects to which the term laws is misapplied. The laws (so wrongly called) that I have listed here last are (I believe) the only laws that are not commandments and can nevertheless be properly incorporated into the field of jurisprudence. But although these, along with the so-called laws fixed by opinion and the objects metaphorically called laws, are the only laws that are really not orders, there are certain laws (correctly called so) that may not seem convincing. Therefore, I agree with some comments on laws of this dubious character. One of these laws conflicts with another when acts ordered or prohibited by the former are prohibited or ordered by the latter. For example, in most countries of modern Europe, the practice of duel is prohibited by positive law. It is also contrary to the law received in most of these nations as being established by the Godhead by express revelation. But despite the positive law and despite his religious beliefs, a man of the lord class may be compelled by the law of honor to give or accept a challenge. If he refrained from giving, or refused a challenge, he could attract the general contempt of gentlemen or men of honor; and could be confronted with insults and insults sufficient to embitter his existence. The negative legal duty, which certainly falls to him, and the negative religious duty, to which he considers himself subject, are therefore dominated and controlled by this positive moral duty which results from the so-called law determined by the opinion of his class.

So-called illegal laws, which are very similar to real laws, are just opinions or feelings held or felt by people regarding human behavior. As I shall show later, these opinions and feelings are called laws because they resemble the laws so called in the proper sense: because in some of their properties or some of their effects or consequences they resemble laws which are rightly called so. The imperfect laws I am talking about now are laws that are imperfect in the sense of Roman jurists, that is, laws that express the wishes of political superiors, but that have not sanctioned their authors (by supervision or intention). Many authors on morality and on the so-called natural law have given a different meaning to the term imperfect. When they speak of imperfect obligations, they usually mean duties that are not legal: duties imposed by God`s commandments, or duties imposed by positive morality, as opposed to duties imposed by positive law. An imperfect obligation in the sense of Roman jurists is exactly synonymous with a total absence of obligation. Because the imperfect term simply means that the law wants the sanction that is appropriate for laws of this kind. An imperfect obligation in the other sense of expression is a religious or moral obligation. The imperfect term does not mean that the law imposing the obligation wants the appropriate sanction.