In philosophical jurisprudence, legal positivism has made a niche for itself in defining itself in opposition to a somewhat straight-laced reading of natural law theory. Often the comparison is based solely on an exceedingly strong and doctrinal interpretation of the two competing models. In this paper I will examine and distinguish the conceptual frameworks of both philosophical positions, detailing the “strong” and “weak” theses of natural law ; while in turn also examining the implications of “hard” and “soft” legal positivism. The finer distinctions between these more tailored or qualified theses need to be recognized in order to provoke a better understanding of the disagreement from a conceptual perspective.
Natural Law – “Lex
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In an ancient, modern, and contemporary context, natural law has been identified in not only with morality but also with the human ability to employ reason and to identify principles of rational conduct. Rational conduct, by ancient thinkers was more often identified by what is “Good” (be that in terms of divine eternal truths, or empirical notions of naturalistic perfection or completion) whereas more modern variant of natural law may identify a rational principle based on other considerations such as not only what is good, but what right, just, fair, reasonable or practical.
Mark Murphy credits Thomas Aquinas with the natural law maxim “necessarily, law is a rational standard for conduct” (i.e. the strong thesis – hard necessity). He argues that natural law is often falsely recognized to be synonymous with a Latin maxim commonly associate with Cicero, St. Augustine, or Thomas Aquinas is ‘lex iniusta non est lex’, or ‘unjust law is not law’. Subscribing to this maxim would be a preposterous and gross interpretation of mainstream Thomist natural law. Although this phrase may provoke reflection upon whether unjust laws ought to be considered valid, or truly law; this is just an oversimplified version of the logical principle of non-contradiction and often incorrectly attributed to natural law, in the form of a straw man. There are obviously unjust laws that were spotted throughout present time, country, and history. These laws may undoubtedly be considered as
Philosophical thought provides the infrastructure that allows society to author moral laws. While morality may be the aim, other variables can cause these laws to become corrupt. The urge for power is one of many, recurring, variables that infect morality. During these times of ‘infection,’ society must contest those who oppose just laws. In order to shine a light on unjust laws, laws are bound to be broken. It is not only lawful to break unjust laws, but the duty of the people to speak up and be a voice for change. It is critical, during these times, to work towards equilibrium with the goal to change the law. Regardless of the circumstances, it is lawful to break unjust laws with the goal to make them just again.
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
The foundations of law have been set in the ideas of natural laws that are given to us. There are many different theories on how our laws of nature have brought us to develop the social contracts and government of today’s society. John Locke and Saint Thomas Aquinas’s views of how social contracts are developed from natural and eternal laws are both well seated in the belief of God given rights, but differ in the politics of the governments.
The Law of Nature is discussed greatly in the book Mere Christianity of C. S. Lewis, who asserts that it is the Law of Nature which makes humans obligated to do the right thing. According to Lewis, this law can also be referred as The Real Morality or the Standard to which all people follow, and which people use to evaluate their and others’ behaviors. The Law of Nature tells the people which circumstance is appropriate to execute certain actions, and which situation is not suitable for certain behavior. For instance, in every human, there is a warrior trait, which is said to be necessary by the Law of Nature in order to protect oneself against life-threatening beings, but to be wrong when it is used to injure the innocent people. However, the Law of Nature functions beyond the machinery of evaluating
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
He believed that in order to understand law, one must first realize what law’s purpose is. He, like Thomas, argued that law’s purpose it to benefit society by creating a morally sound order to human action and conduct. He detailed seven goods that he believed to be intrinsic and universal, and argued that laws should be enforced under the stipulation that they adhere to the enhancement of these goods, because they are what determines a fulfilling life. They are: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion. The goods that relate to the thesis of this paper the most are knowledge and sociability, as the result of the case has a direct benefit on them and is, therefore, moral and legitimate. Legal positivists, however, disagree that morality has any place in determining what legitimate law is.
Thomas Aquinas’ Natural Law theory proves the jurors in Morris did make the right decision. The Natural Law theory discusses our ability to distinguish
Judges bound to uphold the United States Constitution under positivist legal theory do so regardless of the morality of the law, but rather because of an obligation to the law because it is a valid part of the legal system. HLA Hart’s positivist perspective defines law as the union of primary and secondary rules, and that we follow those rules simply because they are consistent with the rule of recognition. Looking at slave law, we see that we as humans posited laws such as the Fugitive Slave Act, setting them into stone as law in the United States. But even though we can argue that slave law is morally wrong, positive law in America provides for it. In
St. Thomas Aquinas argues that an “an unjust law is no law at all.” (Aquinas in Dimock, ed., 2002, p.19) However, Aquinas also acknowledges that a human lawgiver may promulgate a command that has the form of law, and is enforced like a law, yet is unjust. This observation leads to the realization that these are two inconsistent claims. Yet Aquinas believes that these inconstancies can be reconciled. In Aquinas’ view an unjust law is not a law but yet is also able to be issued as law and imposed as law.
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.
This paper will demonstrate how Hart’s account of the relationship between law and morality shows an understanding of how they both work together yet can also work as separate entities. It will take a specific look into the internal point of view to aid the understanding of why
Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several
This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)
The rule of law is a difficult concept to grasp and proves elusive to substantive definition. However, the following work considers the attempts of various social and legal theorists to define the concept and pertinent authorities are considered. Attitudes and emphasis as to the exact shape, form and content of the rule of law differ quite widely depending on the socio-political perspective and views of respective commentators (Slapper and Kelly, 2009, p16), although there are common themes that are almost universally adopted. The conclusions to this work endeavour to consolidate thinking on the rule of law in order to address the question posed in the title, which is at first sight a deceptively simple one.
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.