Rommen: “There is no law without morality"

“THERE is no law without morality. An immoral law is a contradiction in terms or simply a statement of fact, namely, that this positive legal norm conflicts with the moral law and hence can impose no obligation, though the state may have the physical power to enforce it. The will to achieve an ever greater approximation of the positive law to the norms of morality is so deeply rooted in man that even the positive law is always referring to morality. Often enough the judge, as was already the case among the Romans with their doctrine of aequitas, is not content with a mechanical subsuming of particular instances under the general norm but allows equity to play its part. In extreme cases, however, he goes back to the will of the lawmaker, who is assumed to will only what is moral; or, if the literal meaning of the law is impossible, he puts forward an independent interpretation of the meaning of the law, on the ground that the lawgiver could not have willed anything unjust.”

~Heinrich A. Rommen: Natural Law: A Study in Legal and Social History and Philosophy, p. 188.

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