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Higher law refers to unwritten moral or religious precepts that some believe take precedence over written laws. It can be used in legal appeals, but is more common in political discourse and individual decision-making. In some countries, religious and moral principles are enshrined directly in the law.
A higher law is an unwritten law in the form of a moral or religious precept that people believe takes precedence over written laws in a nation. This concept commonly arises in Christian nations, where citizens can argue that some rights are natural and implicit, even if they are not expressly provided for by law. In regions where written law is a reflection of religious beliefs or where government is based on religious law, such as in some Muslim countries, the concept of higher law is not as applicable, because religious and moral principles are enshrined directly in the law.
This concept can arise in appeals or challenges to law where one of the parties to a case attempts to argue that the matter is governed by a superior law and that as a result it is not possible to make a fair or reasonable judgment about the situation. The judiciary can either reject this argument or affirm it in its decision. In countries with a secular national ethos, appeals to higher law can be framed as appeals to “natural” law to avoid arguments about whether religious norms have a place in the judiciary.
Moral principles can encompass a variety of activities and provide basic guidelines for human behavior that people should abide by. These may not be specifically legislated under the argument that the population understands the higher law and need not have enunciated behavioral rules. Other laws may be rooted in higher law beliefs; murder, for example, is considered a crime not just because it is a form of social disorder, but because many people believe it is morally wrong.
References to higher law in legal texts are relatively unusual, as are cases where the parties actively attempt to argue that religious or moral values have jurisdiction, as it were, in a case. However, the argument arises, especially in political discourse, where politicians can lean on the morality they feel is common to society to make a point. This point may be rooted in arguments that all members of society should hold to a common moral and understand why certain behaviors are not acceptable.
Individuals may refer to being guided by a higher law when discussing the methodology behind their decisions. Secessionist movements and groups that practice civil disobedience who choose to willfully disobey written law may still honor moral or religious beliefs, and in some cases argue that higher laws are what compels them to act.
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