Canadian Law-Natural Law V. Positivism

“Law is invariably constructed as a response to conflict or, specifically, to a given social problem; it is a mechanism that attempts to control certain kinds of activities or behaviours” (Boyd, 2007, p.45). Every citizen in our society is affected by the law in one shape or the other. As such, this paper will examine that as students and analysts of law’s evolution we should accept both natural law and positivism. Consequently, this essay will gauge the strengths and weaknesses of this claim. Indeed, this is paramount as our beliefs and values in relation to law define us as citizens within our given society, they are shaped and influenced by economics, morals and politics (Boyd, 2007, p.5). Subsequently, this essay will examine natural law to determine its strengths and weaknesses and then juxtapose positivism’s strengths and weaknesses by using the same examples in both perspectives to produce a clear and coherent examination of natural law and positivism to analysis the pros and cons regarding both perspectives. This paper is by no means an in depth examination of natural law and positivism due to time and space, but a brief synopsis of the strengths and weaknesses of embracing both natural law and positivism.
According to Boyd (2007), natural law states that there is a clear connection between law and morality; if the law is not based on justice then it is rendered invalid and should not be classed as law. Furthermore, Boyed (2007) posits that natural law has a long history that can be dated back to more than 2500 years ago in the context of Western development. This connection between law and morality serves as an impetus for human rights and social justice. For example, Boyd (2007) highlights the case between R. v. Caine. Caine postulated that incarceration regarding the possession of marijuana is tantamount to a violation of the Charter of Rights and Freedoms, as such it is unconstitutional and in essence an affront to democracy and our civil liberties.