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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 may argue that some rights are natural and implied, even if they are not expressly stated in the law. In regions where the written law is a reflection of religious beliefs or the government relies on religious law, as in some Muslim countries, the higher law concept is not as applicable, because religious and moral principles are enshrined directly in the law.
This concept can arise in appeals or challenges to the law where one of the parties to a case attempts to argue that the matter is governed by higher law, and it is not possible to render a fair or reasonable judgment in the situation as a result. The judiciary may reject this argument or affirm it in its decision. In countries with a secular national ethic, appeals to higher law may 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 are expected to abide by. These may not be specifically legislated under the argument that the populace understands higher law and does not need to have behavioral rules spelled out. Other laws may be rooted in beliefs about higher law; murder, for example, is considered a crime not just because it is a form of social disruption, but because many people believe it is morally wrong.
References to higher law in legal texts are relatively unusual, as are cases where parties actively attempt to argue that religious or moral values have jurisdiction, as it were, in a case. However, the topic does arise, especially in political speechmaking, where politicians may lean on morals they assume are common to society to make a point. This point can be rooted in arguments that all members of society should abide by common morals and understand why certain behaviors are not acceptable.
Individuals may refer to being guided by a higher law when they discuss the methodology behind their decisions. Secessionist movements and groups practicing 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 compel them to act.
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