Lex injusta non est lex has been a principle, and a description, of natural law since common law and equity were separate concepts. For many centuries the Court of Equity sought to remedy legal iniquity, and judges avoid reaching unconscionable decisions because the law ought to be congruous with morality, being legally less good law if it were not. More recently, Hart conceded upon a point of law: "This is law; but it is too iniquitous to be obeyed" suggesting law has, in its essence, a vague "morality" within its nature to be understood by those who it governs.
Natural law is primarily concerned with the idea that morality is the keystone in many legal arguments and law follows as a by-product. Rousseau states that law "is that holy imprescriptable law which speaks to the heart and reason of man"8 where it is up to individual conscience to decide upon justice as "conscience never deceives us". Yet the idea of unjust is a human concept. Therefore can natural law, in prescribing the nature and thus the concept of law be pedagogical in terms of dictating a "morality" for humans to abide by in communities? It would assume that communities all have similar base principles governing their lives.
If morality is then taken as a human concept in that life is based upon experience rather than innate feeling, it shows that morality is not decided on by a God but by new experience which leads to an emotionally conditioned response. Thus it can be logically concluded that morality is a series of conditioned responses that have been codified over time to form a concrete morality. Indeed, this is consistent with the concepts propounded by natural lawyers such as' " (it is) the first moral principle" to choose " the possibilities which are compatible with integral human fulfilment".
No choice can bring overall fulfilment thus the principle of integral human fulfilment is a sociological ideal to guide society to legally "right" choices. The changing nature of sociological morality and the notions which attempt to analyse the concept of legal repercussions hinder the description of law in that any attempted description must take into account the fluidity and subjectivity of social communities upon which the concept of law directly relates to.
However, a description of the use of the law is in nature, for the positivist, as for the realist, irrespective of content and is legally binding unless set aside by another Court. The House of Lords ruled in Preddy that no offence under section 15(1) of the Theft Act, 1968 can be committed on the facts because a vital ingredient, "property of another" is missing.
However, a decision of a court convicting someone prior to Preddy is not overturned by the ruling even if the normal effect of judicial decisions is both prospective and retrospective On this view the need for a decision, any decision, is more important than that the decision have a particular content, however congenial. This "decision" is typically a concise description of what the law has become. Yet the consequence of any decision has the potential to change what law is, both descriptively and conceptually.
However, an analysis of the concept of law can never fully be a description of what the law actually is. Questions about the function of law are central both in jurisprudence and in the sociology of law but they cannot be answered, definitively, if at all, a priori through conceptual debates An analysis of concept provides a conceptual framework for prescriptive law to operate in idealistically and can theoretically prescribe the nature of natural justice but the conceptual analysis of theory is becoming somewhat obsolete prescriptively.
Any theoretical concept undermines the practicality of a principle that it may purport as without there being a pedagogical notion underpinning it the ideas constituting the theory are transient. I maintain however, that as discussed earlier within the body of the essay, this difficulty is becoming less pronounced. The concept and nature of law is becoming less retrospective and while an analysis separates into the elements, a description of law should work in symbiosis with this by providing an account of the elements which make up the constituents of legal practice.
However, analysis of the concept of law and a description of what the law is can never fully be amalgamated until legal theorists accept that concept, and nature of law, need to be fluid and contemporary in order for it to be a description of what the law is.
1 Chambers Dictionary, 2nd edition 1999 2 Ibid 3Raz, 1998 #1 4Dworkin, R. M. , Law's Empire (Cambridge, Mass: Harvard University Press 1986), ch. 1. 5 Finnis, J. , Natural Laws and Natural Rights 6 Weinreb, L. , Natural Law and Justice 1987, Chap 4 7 115 NY 506, 22 N E 188 (1889)