The Rationality and Justice of Positive Law

Petja Mihelič

The Rationality and Justice of Positive Law

Key words: democracy, positive law, natural law, justice

Abstract:
Law can be abused even in democratic states. Dictatorial regimes around the world act according to their legislation. Thus, their use and abuse of power is technically legal – however, is this also just? Radical positivism, meaning complete separation of law and morals, can turn against man. Democracy is not ipso facto just and can produce inherently evil acts (mala in se) masked by the will of the people. When people in democracy serve their selfish interests, this arguably leads to tyranny – where people eventually serve the will of the tyrant. In mature democracy, people vote for men who think independently and act according to their conscience and justice. Similarly, in mature democracy, people do not condemn those who, following their conscience, adopt unpopular decisions. Consequently, conscience must be properly formed according to the precepts of the natural law.

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