The relationship between unjust laws and unconstitutional acts

Abstract

The main concern of this research is the relationship between the moral and political notion of injustice in laws and its relationship with the constitutional idea of unconstitutionality of laws. Unjust laws need not necessarily yield unconstitutional acts and the reverse is also true. This research does not attempt to answer all questions it only tries to start off a discussion about this relationship between the moral and the constitutional. What is certain is that both moral/political injustice and unconstitutionality are associated with other concepts such as that of justice, rights, authority and obligation. The first chapter is the most psychological of the seven chapters. It deals with the sense of injustice: its perception by the common man in the street and also its importance in political thought and action. The second chapter is about justice. The theory of justice put forward in this research is a theory which sees justice as the main aim of the Law and also as a direct implication of the common good. The third chapter is about Law. Besides a description of some of the features of the Law and an attempt to formulate a working definition, the main controversial point here is the assertion that Law naturally falls differently on persons of different social category. The relationship between 'unjust laws and unconstitutional Acts' is after all a relationship between different aspects of the notion of justice. Law as "ius" or "Drift" implies just behaviour. According to the author Dritt is supported by practical reasonableness, by obligation and authority whilst justice is seen as a direct implication of the common good supported by the three pillars. If any one of these supporting concepts does not subsist there will be a distortion of the concept of Drift, rendering it not Dritt but "imghawweg'. The fourth chapter describes the constitution of the State. The research analyses the general western conception of the State. A brief history of the emergence of the constitutional set up is discussed in this chapter. In this part of the research a very bold and controversial inquiry is put forward: Is there a relationship between the tendency in all human societies (even in the most ancient) to reduce the essence of all the way of life of a community to a set of principles, to which all other rules and laws have to submit and the actual formulation of superior laws (or supreme law)? Even if there is no definite or homogenous answer in this research what is certain is that there is a relationship of some degree between the mental processes involved. The Constitution should embody at least some the principles and desiderata of justice, such as that of democracy and human rights .. Furthermore, the notion of Rule of Law is essentially a constitutional issue but it also has a moral dimension.