JOURNAL OF LAW AND SOCIETY VOLUME 14,NUMBER 3. AUTUMN 1987
Natural Law Theory and Legal Positivism: Two Sides of the Same Practical Coin? TIM KAYE* INTRODUCTION In their article "The Practical Difference between Natural-Law Theory and Legal Positivism",' Deryck Beyleveld and Roger Brownsword have maintained that if the continuing debate between legal positivists and natural lawyers is ever to get beyond misrepresentation and abuse, jurisprudence must develop a "theory of legal ideology". 2 Only when such a theory has been developed, they claim, shall we be in a position to know "how legal rhetoric 3 arises and affects these [thoughts and acts]". As an interested observer, rather than someone actively involved in the dispute between legal positivism and natural law, 4 I view this call from two of the debate's major protagonists as a very welcome development for three reasons. First, jurisprudence has too often been limited in its discussion of important issues by a tendency towards exclusively abstract argument, so that: ... are left at the end not with a blueprint for legal and political action, for (any] we conclusions are too vague for any real value choices, but with hints, no more, of how to better ourselves and the communities within which we live.'
It is high time jurisprudes began to explore the dialectic between theory and practice. Secondly, as Beyleveld and Brownsword have pointed out, the debate has often been characterised by a tendency to misrepresent opponents' views. Worse, therehas also been an element of 'talking past' other disputants, rather than addressing genuine disagreements, so that real debate has not been engaged. But an illumination of theory by means of practical examples inevitably makes the former more concrete and explicit, so that both misrepresentation and wilful evasion of awkward criticism become more difficult. Thirdly, this obsessive concern with abstract debate - often of a rather opaque nature - leads, of necessity, to a shunning of sociological analysis, for fear that legal philosophy be taken into the forbidden realms of real life. An attempt to synthesise the twin disciplines of philosophy and sociology of law is *Department of Law, University College, P. 0. Box 78, Cardiff CF JXL, Wales. I should like to thank Dave Burnet for his comments on an earlier draft.
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thus surely overdue. 6 And an attempt at an analysis of legal ideology at least represents the putting of a jurisprudential toe in the sociological water. The reader may judge the likelihood of a scalding from the following analysis. METHODOLOGICAL DIFFICULTIES There are, of course, enormous difficulties involved in attempting to develop any theory of ideology, and I do not pretend that I have succeeded in solving all the problems. Nevertheless, even in the somewhat schematic outline which follows, I believe I can offer some guidance to others wishing to discover something of the ideologies behind the most familiar dispute in jurisprudence. The first and probably most obvious problem to overcome is what is meant by the word 'ideology'. Of course, a full discussion of this topic would involve the rehearsal of a debate as far from conclusion as is that between legal positivism and natufal-law theory. However, the whole tone of Beyleveld and 7 Brownsword's article is one of...