The Difference Between Natural Law and Legal Positivism

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UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9B

THE DIFFERENCE BETWEEN NATURAL LAW AND LEGAL POSITIVISM This essay is going to discuss and analyse the differences between two basic principles- natural law and legal positivism. According to Hume, there are two realms of human enquiry , one in the field of facts which is concerned with what ‘ is ‘ actually the case and the other in the field of ‘ought’ that is, what ought to be the case1. Those who believe in the principle of natural law are known as naturalists while those who believe in the principle of legal positivism or ‘positive law’ are known as positivists. This is a brief overview of the two principles of natural law and legal positivism. Natural Law Natural Law started with the ancient Greeks and suggested that there was a higher power in control of human existence. Natural law deals with the combination of law and morals and is sourced from religion, culture and reason. It is the means by which human beings can rationally guide themselves to their good and it is based on the structure of reality itself. All human beings possess a basic knowledge of the principles of natural law.Naturalists believe ‘ an unjust law is not a law’. Doherty said ‘One of the classical theories of natural law is that there are certain principles of human conduct, awaiting discovery by human reason, with which man-made laws must conform if it is to be valid’2 Natural law is what ‘ought’ to be. Some natural law thinkers were Hobbes, Locke, Finnis, Fuller and Aquinas. Aquinas set the pattern of modern natural law thinking. He divided law into four categories-eternal law, divine law, natural law and human law. The first precept of the natural law, according to Aquinas, is the imperative to do good and avoid evil. ‘Aquinas believed that human laws that do not correspond to the natural law are corruptions of law. These are human laws that lack the character of law that binds moral conscience’ 3 The term ‘natural law’is ambiguous in that it refers to a type of moral theory as well as a legal theory.

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Dennis Lloyd The Idea Of Law(1964)p.80 Michael Doherty Jurispudence:The Philosophy Of Law(Third Edition)(2004)p. 132 3 Ibid p. 151

UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9B

Legal Positivism Legal positivism has to do with the seperation of laws and morals. ‘Legal positivism is a philosophy of law that emphasizes the conventional nature of law-that it is socially constructed. According to legal positivism, ‘law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law’4 Some positivists were Bentham, Austin, Hart and Kelsen and they all had different theories. Bentham- utility, Austin- commands, Hart- rules, Kelsen- norms. Legal positivism is of the view that morality is irrelevant to the identification of what is valid law. Bentham referred to natural law is ‘nonsense on stilts’. He said the test of good or evil in an act is its utility and that the ‘greatest happiness of the greatest number’ is the social test of what is moral conduct. Austin’s particular theory of law is often called the ‘command theory’ The three basic points of Austin’s theory were- the law is a command issued by the uncommanded commander , the commands are backed by threats and a sovereign is one who is habitually obeyed. Kelsen was of the view that the only law is positive law, that which is the product of the will of the people, there are no natural laws therefore. Positivists believe that law is linked with the sovereignty. ‘According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power –they are obeyed by all or most others but do not themselves similarly obey anyone else’5 Positivists say ‘ought’ is...
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