The "draconian Illegal" And "a Bad Law" Theory

This paper mainly takes theories of"evil law is also the law"and"evil law is illegal"as a thread of development in western jurisprudence, and combs its historical train of thought. Through understanding the interreaction of the two, grasp the basic train of thought of development and the trend in western jurisprudence. Since Aristotle put forward the double meaning of"rule by law", which means that good law must be consistent with the double standards of essence and form, making natural and justfied law has always been the ideal of the majority of thinkers. Especially after School of Natural Law's advocation, the idea about"the evil law is not a real law"has been gradually rooted in hearts of many people, and"evil law is illegal"plays the leading role nearly two centuries. However, after middle period of the 18th century, capitalist world basically finished industrial revolution. From then on, the bourgeoisie has really got a firm foothold, and the western stepped into the real modern society. Meanwhile, Classical natural law began to decline, and Analysis of Law began to mount the historical stage and became the main theme of the times, and"evil law is also the law"naturally became the mainstream of jurisprudence at that time. Since the end of World War II, natural law science has begun its real revival. It has close ties with the connection between Fascist's savage act and positivism philosophy, and the practical legal problem met in the course of trialing the Fascist war criminals.The debate of Harte and Fuller, and the proposition of Harte's"Minimum level of natural law", have proved"evil law is also the law"and"evil law is illegal"have their own advantages and disadvantages. These two theories achieves a degree of integration in contemporary.In addition to the introduction and conclusion, the full text can be divided into four parts. Through the story of Socrates and Antigone, and the profound truth reflected by the story, the first part put forward a question: what is the real relationship between law and morality? It is also the conflict between"evil law is also the law"and"evil law is illegal". This question makes western legal scholars think deeply for a long time. Through investigating history, the second part combs the historical train of thought about"evil law is illegal". From ancient Greece, Rome, Middle Ages, and then to modern times, the second part describes each of the representatives of this thesis in every period, and talks about their basic views and the development course of"evil law is illegal". Corresponding to the second part, through combing the development course of"evil law is also the law", the third part mainly talks about views about School of Empirical and Analysis law and School of New analysis law, and points out School of New analysis law's amendment to Austin's theory. This proves that"evil law is also the law"and"evil law is illegal"has been reconciled to a certain extent. The fourth part analyzes these two theories's respective values, and the reason that why they can be reconciled in modern times. The conclusion is that the appearance of any theory has their own historical accordance, and any theory has flaws. Only revising it constantly according to the development of times, could it adapt to the development of the society, and have a steady flow of vitality.