Lawyer

LEGAL POSITIVISM vs. NATURAL LAW THEORY There are two “natural law” theories about two different things: i) a natural law theory of morality, or what’s right and wrong, and ii) a natural law theory of positive law, or what’s legal and illegal. The two theories are independent of each other: it’s perfectly consistent to accept one but reject the other. Legal positivism claims that ii) is false. Legal positivism and the natural law theory of positive law are rival views about what is law and what is its relation to justice/morality. Natural Law Theory of Morality i) Even things which are not man-made (e.g. plants, rocks, planets, and people) have purposes or functions, and the “good” for any thing is the realization of its purpose or function. ii) The good for us human beings is happiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature, what we “by nature” do best. That involves the development and exercise of our capacities for rationality, abstract knowledge, deliberative choice, imagination, friendship, social cooperation based on a sense of justice, etc. The moral virtues (e.g. courage, justice, benevolence, temperance) are character traits that help us fulfill our true nature. The life of the heroin addict or of the carnal hedonist is not a good one, because it is inconsistent with our natural function. iii) Natural law is the set of truths about morality and justice; they are rules that we must follow in order to lead a good or flourishing life. We can know what these principles are by means of unaided human reason. [The natural law theory of morality rejects ethical subjectivism (“right and wrong are all a matter of opinion”) and affirms ethical objectivism (“some moral opinions are more valid, reasonable, or likely to be true than others”)]. Immoral acts violate natural law. Hence, immoral behavior is “unnatural” (in the sense of “contrary to our function,” not “nowhere to be found in the