The Natural Law Theory And Legal Positivism

Legal positivism is generally based on the principle that Law and morality is distinct and that the validity of a rule depends more on its sources, while Natural law would be more inclined to favour features of reasonableness and the link between morality and law. There are two predominant groups of legal theorists being, Natural law theorists and Positive law theorists, John Austin and HLA Hart

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

Common law is created from the customs and precedents set in the country rather than statutes created by Congress. Common law allowed more discretion on behalf of the judges originally, but less room for change down the line. Natural law is the basis for human contact and does not waiver on moral principles. Natural rights are less vague than the law; meaning, natural rights are part of a person. You cannot be a person if you give up your natural rights, these rights are inalienable, and are the rights referred to in the Declaration of Independence. Legal positivism emphasizes the belief that law is synonymous with positive norms. The norms of legal positivism are created through common law. Legal positivism also argues that the legality of an issue does not settle the morality of issues; legality is always separate from

The Moral Law is not something any person on earth or any society has created, but rather something man feels pressing upon them. Some may argue that parents and the education system teach morality, however, these factors vary

This is the major difference between positivist and natural law thinkers. Natural law is the combination of laws and morals while legal positivism is the seperation of laws and morals. Legal positivism declares that morality is irrelevant to the identification of what is valid law and that the criteria for the validity of a legal rule or law in a society is that it has the warrant of the sovereign and will be enforced by the sovereign and its agents. Raz, a positivist, stated that ‘the validity of a law can never depend on its morality’ 6 Positive law or positivism is

Philosophers base the idea of objective morality on the assumption that some moral ideals are universal and should be the moral responsibility of everyone. Subjective moralists counter this argument by explaining that each moral decision is independent because each moral situation is unique to its own conditions. Ultimately, these two views shape the nature of moral philosophy and theology, each describing the different natures of morality (Hammond). These two theories have a large impact on the thinking process of humans on an everyday basis. This process then leads up to a person valuing different things more than others. The separation of objective and subjective theories all boil down to whether or not a theory is universal or not. A subjective theory has an absence of universal truths, and an objective theory has universal truths. Two vary popular theories that will take part in my research were the Divine Command Theory, and Natural law theory. Two theories that may seem similar, but in fact are very different.

The contrast between Natural Law and Legal Positivism is a necessary starting point for those who wish to understand the relationship between law and morality, and the most varied manners in which it influences society to this day. When it comes to analyzing which theory offers the most well-rounded idea of law, one can argue that Legal Positivism provides the best definition of what law is at its essence. However, because Legal Positivism came to exist as a critique to what was proposed by Natural Law theorists, it is significant that both are explored in depth as means to support such argument.

Hart promotes the need for a clear distinction between law and morality on two levels. Firstly the Social and hermeneutic level in regards to both law and morality sharing vocabulary in both structure and function- showing that in many societies legal rules will match their moral rules. Second a logic and hypothetical level – Hart believes in the possibility of a legal system existing without the influence of morality as there are cases were legal systems do not match the moral grounds of society.( see Austins command theory and the idea of one sovereign ruling all) (SOURCE)

Referring to morality from an individual point of view, each person has strong beliefs about what is wrong and what is right. Moreover, morals differ from person to person and may be due to difference in culture. Morality also results from basic human emotions i.e. love, hate, honesty, greed, sins etc (Psychology Today).

The statement above said by Lord Bingham, from ‘The Rule of Law’ (2007) 66 (1) Cambridge Law Journal 67-85, p. 76. The statement references that the rule of law is not abided by if the state does not provide human protection. This statement can be looked upon, agreed and disagreed with after reviewing the two theories in the rule of law. This will be made possible, as I compare Joseph Raz’s formal theory and Lord Bingham’s Substantive Theory on the rule of law. But firstly, I will address what the Rule of Law is;

“What are the major strengths and weakness of Dworkin’s theory of law as compared to a positivist or natural law perspective?” Discuss.

Since we were kids and became conscious of our surrounding, our parents and grandparents instilled in us an awareness of what is right and wrong. In other words, it is a trait of all human beings and fosters from our desire to get along with each other to live a harmonious life. Laws are a set of rules and behaviors set by governments that society illustrate on what people can or cannot do. The purpose of this paper is three-fold: it will identify and define what distinguishes law from ethics and what similarities they share. The second is an analysis of examples of where law and ethics either meet or diverge. Third is the role where law and ethics either meet or diverge.

I agree mostly with what Ronald Dworkin is quoted as stating in this article. His opinion of the “moral conception of law’s normativity”(479) is what

“…No matter how plain a women may be if truth and loyalty are stamped upon her face all will be attracted to her...” Anna Eleanor Roosevelt was born on October 11, 2014 in New York City, New York. She was the only the only daughter of Anna Hall and Elliot Roosevelt; she was the middle child in her trio of siblings. Her brothers were Elliot Roosevelt Jr. and Gracie Hall Roosevelt who were the oldest and youngest siblings respectively. The Roosevelt siblings encountered trauma at a young age. Their mother passed away when Eleanor was only eight years old and their father passed away shortly after, when Eleanor just turned

In this paper, I will propose that it is better to look at whether a law is legally valid or not through the perspective of natural law theory as opposed to positivist theory. My argument consists mostly of the language of “improvement” which can only exist based on the theory of natural law which states that law is something which has an objective truth behind it. Only when there is an objective mark to hit can there be hits and misses and I believe that positivism disregards the possibility of hits and misses entirely. So, my argument is that it makes more sense to consider legal validity of a law from the perspective of natural law rather than positive law because it includes not only the previously set up legal system when considering validity, but it also considers the general idea of some kind of morality as well. A sub argument is that the starting legal system must have had some basis by which to have been created and accepted which must be some form or notion of morality.