Natural Law and Positivism

Topics: Law, Morality, Jurisprudence Pages: 6 (2455 words) Published: April 11, 2013
The question has asked to compare the approaches of natural law and legal positivism in regard to the statement “law is quite distinct from, and its validity is in no way dependent upon, morals.” Both approaches agree that morality can and usually does play a role in the law, but there is a disagreement as to whether there is any role it must play, as discussed by Denise Meyerson. The first appearance of natural law was over 2500 years ago in ancient Greece, the natural approach of law believes that there is a higher law, such as the bible and god, which man made laws should conform to. J W Harris described natural law as universal and immutable, a higher law and it is discoverable by reason. Natural theorists believe that the law should be moral otherwise it is not law and does not have to be complied with, the Latin maxim “Lex inuesta non est lex” originates with St. Augustine and means an unjust law is not a law, this is the basis of natural law theorists. N E Simmons stated that the law is the “embodiment of a moral aspiration.” Legal Positivisms look at what the law is, where by a central authority creates the laws and if it is created by the correct procedure then the law exists, even if it is considered bad law. Early legal positivists consider that the law is sovereign and does not need a relationship with morals so long as it has been carried through the correct procedure. Natural law approaches this issue by considering what the law ought to be and would take moral worth into account, thus if the law is not moral then it is not law. Positivists separate these issues by stating what the law ought to be is one thing and what the law actually is another, moral worth is only important when defining what the law ought to be to make it a good law, John Austin highlights this and stated “the existence of law is one thing; its merit or demerit is another.” Further David Hume believed that moral statements express out subjective attitudes of approval, where as factual statements describe the way the world objectively is. Legal positivism insists on the distinction between the law as it is and the law as it ought to be. This approach is now been referred to as the separation thesis which was put forward by Professor HLA Hart, who stated “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.” So what can be thought to be morally wrong can be legally right, for example some people still believe that homosexuality is morally wrong but the Civil Partnership Act recognized homosexuality as legally right. It would also be important to mention here that early natural law theorists believed that the law was unchangeable, but people’s moral values are subjective and can change over time, sometimes so does the law, homosexuality was once a crime as it was considered morally wrong by many people but now it is widely accepted and the law has changed, this goes on to Bentham’s Utilitarianism principle that the law should uphold the morality of the greatest number of people. This principle would then go against the natural law approach, if the law should be moral and they consider it not to be then it should not be followed, but not every single person has the same moral beliefs so could constantly break the law considering it not to be law going with the maxim “Lex inuesta non est lex,” this could cause much controversy. In this discussion Nazi law should be looked at, Nazi law had evil characteristics such as the prosecution of Jews and homosexuals, many of whom were killed. This Law was clearly in no way deemed moral but does that then mean that it is not law? Or would it be considered good law as with the quote “law is quite distinct from, and its validity is in no way dependent upon, morals.” Professor H. L. A Hart and Lon L Fuller famously debated on whether the Nazi laws were in fact laws. Hart a positivist argued that they were laws as they had...
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