alt Hacker News> What the President believes is not, has not been, and cannot be the basis of law.
Yes, but...
> If it were, the President would be a king.
First, rape is an immoral act that the law does and should punish. It is a factually bad thing, regardless of whether a legal system recognizes it as such.
Second, pace the legal positivists, the law is a determination of the moral law within particular circumstances. It is not arbitrary without becoming false. As the old legal maxim goes, lex iniusta non est lex: an unjust law is not a law. This means justice is presupposed by the positive law; the latter exists in the service of the former.
Third, kings are not God. They are not the basis for the law in the sense that they can simply legislate anything they want. One reason I've already given: a valid law can only be a determination of the natural law; declaring dogs to have five legs is meaningless.
Another reason is that kings were bound by tradition, custom, and various feudal contracts. In Europe, the Church also kept kings in check. In countries like Poland, the king increasingly became more "presidential" in the sense that the sovereign could not enact any laws without the consent of the nobility (per the Nihil Novi Act [0]).