Legal positivism and natural law

Subject: Law
Type: Argumentative Essay
Pages: 5
Word count: 1276
Topics: Injustice, Justice
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Introduction

Law in general is defined as a behavior regulating system created by the people or governments and enforced by social institutions of governments to ensure compliance. It is a system of rules that govern right and wrong in the society. There are different categories of law such as criminal, common, civil and statute laws. All these however, have one thing in common. They are all behavior regulating rules. Scholars have however, come up with theories that explain these rules and regulations. There is the Natural Law theory (NLT), Positive Law Theory, The Realist Theory of Law, Legal Positivism (LP) and Marxist Law Theory. Among these, Legal positivism and NLT are conflicting views about the meaning of law and its connection to justice and morality. NLT argues that morality is the foundation of law while the other argue that social institutions, especially the government, create laws and impose such laws on people. This essay will explain Natural Law Theory and it theorists to understand how they perceive the law. This perception bears great importance to the society. Without it, there may be no just and fair society. Without it, even legal positivism cannot survive, because there will be no institutions to form any laws.

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Natural Law Theory

Proponents of the Natural Law Theory (NLT) believe that natural laws have a direct relationship with the God given morality. One of the chief philosophers of the theory, St. Thomas Aquinas, argued that the law is a natural occurrence of God’s concept of a society guided by a moral code for mankind’s benefit as they live in the universe. It is from this moral code that the legal moral framework is founded. He stated that if in any case the man-made laws come into conflict with the divine code, then God’s natural laws should triumph. These laws are designed to discourage man-made corruption and ensure common good within the society. For that reason, they strongly believe that any “unjust law is no law at all”, just as St. Augustine put it. If legal positivism were to rule without the existence of natural law, there would be no justice. It is because people would act, especially government officers, justifying their acts as law. The meaning of justice will be based on what these people deem it to be.

Philosophers still come up with their concepts about this term revising previous theories or criticizing them. Consider professor Lon N. Fuller. Fuller analyzed an opposing philosophy about law, legal positivism, arguing that it was “intellectually unsound” for the society. He argued that the purpose of law is to discover the elementary values of justice fundamental to the relations of men, and use these values to create legislations for the relations of men. In this, reason was paramount. A command by a sovereign for people to follow the law is not enough to discover the “right” or “just” of the law.

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Natural law theory forms subscribe to the hypothesis that there is a connection between morality and the law. Classical law theory argues that law can therefore not be comprehensible without reference to moral philosophies. As the founding father of natural law hypothesis, although informed by Plato and Aristole’s ideas, Aquinas distinguished this kind of law into four: natural law, eternal law, divine law and human law. Natural law entails the principles of eternal law that guide human behaviors to ensure they possess reason and free will. Human law are man-made laws, but they have to conform to natural laws, otherwise if one is in conflict with it, then natural law precedes it. This explains why when one goes on a quest to murder people and then defends himself or herself using the legal positivism theory, morality should prevail. If he is justified to have done it as requested by the government, moral reasoning should still explain such actions otherwise other people may follow suit and justify their actions in a similar manner. In doing so, any community would have lost order.

Proponents of the theory also continue to present important reasons for its use even in contemporary society. John Finnis for example, concurred with the classical natural law principles but did not exclusively agree that an unjust law is no law. According to Finnis, an unjust law can be legally binding, but not obligatory. Such a law has no justification to the coercive powers of the government because it lacks the moral ideals that make a rule a law. This explanation would be perfect for the prosecution of Nazi war criminals who acted according to the unjust laws of the institutions.  Finnis theory has the following as essential goods for humanity: “aesthetic experience, life, play, religion, knowledge, practical reasonableness, and friendship and sociability”.

Fuller’s philosophy was a revival of the classical natural law theory principles after the legal positivism took over for some time. Fuller criticized this philosophy, arguing that it was not flexible enough to handle the constant changing situations and problems of life in the society. In his argument, he noted that legal positivism gives room for lawless laws that achieve nothing. In this he considered that human activities are purposive and therefore when making judgement, laws should make references to such purposes and the achieved ends. This philosophy infers that a rule is only considered a law if it is capable of guiding behavior as the rule itself dictates.

Contrary to the NLT, Legal Positivism theory argues that the law is a collection of rules and regulations formed by the social institutions that arise from developing customs and result into a quantifiable legal code. They oppose the argument that there is a connection between the formation of legal laws and morality and ethics. The initiator of this philosophy is Jeremy Bentham who argued that there is no way that laws were self-determining without the government. According to him, the government created the laws. His ideas were furthered by John Austin who also argued that the law is just “a command issued by a sovereign”. Other opponents of natural law are John Stuart Mill and his father John Mill. H. L. A. Hart also came up with a new idea in legal positivism. He refuted the idea of law as a command, but still maintained that their foundation need not to be based on moral judgement.

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It is true that the laws cannot be formed without the government, but the government is formed by the people who are then guided by their natural moral standards to form laws that regulate certain immoral behaviors or those that can contribute to immoral behaviors. Additionally, legal positivism encourages obedience to the law because it is the law, and this destroys the basis of justice in the law itself. Hitler’s laws in Germany are a good example of the devastating effects of legal positivism. Millions of people were killed because the law was the law and not because they deserved to die. There was no justice, and the role of the law is to ensure justice and order.

Conclusion

Although the natural law theory’s first philosopher is Aquinas, others have come up with philosophies that fit the current human situations. The principles of eternal law that guide human behaviors to ensure possession of reason and free will is a constant factor in natural law. In one of the last versions of the natural theory by Fuller, he argues that a judge has to determine what is right for the people of concern, what is right for the purpose for which the case is brought and consider the end result. The trend in these philosophies show some adaptableness of the theory with situations and easy applicability.

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Did you like this sample?
  1. Abate, T., 2012, Major Theories of Law.
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  3. David Brooke, Q&A Jurisprudence 2009-2010 (Revised Edition, Routledge 2009) 79
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  5. Hermann Kantorowicz (ed), The Definition of Law (Cambridge University Press 2014) 13
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