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Natural Law Theory And Legal Positivism

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Question:

Discuss about the Natural Law Theory And Legal Positivism.
 
 

Answer:

Introduction

The true nature of natural law theory is often misunderstood while providing that natural law theories are not consistent with the theories of legal positivism. It has always been provided that the concept provided by natural law theories is totally different from that of the theories of legal positivism. There have been various studies conducted in order to prove that legal positivism is totally different from natural law theory. Natural law theories emphasizes on justice equality and morality where is legal positivism focuses on making law according to the needs of the society. Natural law theory has the primary function of securing justice. It provides that laws which are not just cannot be regarded as laws at all. Legal positivism on the other hand as the function of providing common good for the community. Therefore prima facie observation of a person who is a believer of natural law theory would be that a positive law theory which is not in accordance to the theories of divine law or natural law cannot be regarded as a law at all. The people only have a moral obligation of obeying principles which are not consistent to natural law and there is no legal obligation imposed on the people to obey them[1].

The purpose of this paper is to analyze various studies on both natural law theory and legal positivism in order to showcase that natural law theories are not totally inconsistent with positive law theories as it is generally depicted. The paper also analyses the gap in various studies to point out issues if any with such studies have ignored in relation to both natural law and positive law theory.

 

Natural law theory

Natural Law is a wide-ranging and frequently misappropriated concept incorporated round numerous schools of science, philosophy, history, law and theology. Truly, Immanuel Kant repeated to us, 'What is law?' may be said to be about as embarrassing to the jurist as the well-know question ‘What is Truth?’ is to the logician[2].

As per d'Entreves and Passerin natural law is a theory of moral with respect to jurisprudence which provides that low has to be based on ethics and morality[3]. It states that law is made of and based on what is ethically and morally correct. Human can discover natural law through the use of reasons and choosing between the good and the evil. Thus the power of natural law is derived from finding out specific universal principles in ethics and morality. The distinction between nature and law, convention and customs had been emphasized on by Aristotle, Socrates and Plato. What is provided through law is diverse with respect to the place, however what is provided through nature has to be consistent everywhere. Many consider Aristotle as the father of natural law. Aristotle provided the argument in the book Rhetoric that “separate from specific laws which each jurisdiction has made up for themselves there is a higher law or common law which exists in accordance to the nature”. Here he was talking about Natural law.   According toAtkins the theory of natural law is interpreted as the theory which provides that specific ethical and moral laws always transcend time, government and culture[4]. The universal stands are applicable on mankind during all the time of their existence. The specific ethical and moral standards are discoverable by and inherent in all of mankind and are the fundamental of a just and equal society[5].

As stated by Kugler, Peter and Michael the concept of natural law is ambiguous. It points out to a form of ethical and morally correct theory along with a legal theory[6]. However the fundamentals of both the types of theory are independent of each other logically. Natural law does not point out towards the law of nature all the laws which science objects to define. As per the moral theory of natural law the ethical standards which guide human behavior are to some extent derived objectively from human nature itself along with the true nature of the world. Even when the theories are logically independent of each other they intersect. As per the legal theory of natural law the power of legal provisions mandatorily extracts to the least in part from consideration in relation to moral merit of such principles. There are various kinds of legal theory in relation to natural law which are different from each other in relation to the role which morality place in finding out the authority of the legal provision.

According to Wright and Fletcher a collection of mandatory and necessary situation for presence of law which distinguishes law from unlawful provision in every world possible exist[7]. The natural law classical theories such as a Theory provided by Thomas Aquinas emphasizes on the overlapping between legal theories and natural law moral theory. Another development of the natural law classical theory is the theory of new natural ISM as provided by John Finnis. To the contrary the theory of procedural natural ISM as provided by l fuller rejects the conceptual naturalist idea which states that there are mandatory substantive model restrictions on the content of law. Lastly the theory provided by Ronald Dworking is a critique and response of the theories relating to legal positivism. All these theories Aryan relation to one or more fundamental tenants of natural law legal theory and are significant to its influence and development

 

Legal positivism

Legal positivism is the theory that the presence and subject of law rest on  not on the merits of social facts but the fact itself. The British jurist John Austin (1790-1859) articulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” The positivist theory does not say that law's virtues are incoherent, trivial, or fringe to the viewpoint of law[8]. It speaks that they do not define whether legal systems or laws exist. Whether a legal system is present in a society is based on the existence of definite arrangements of governance, not on the degree to which it contents principles of justice, the rule of law or democracy. What laws are applicable in that arrangement rest on on what social standards its bureaucrats identify as commanding; for instance, judicial decisions, social customs or legislative enactments. The statistic that a rule would be, wise, efficient, prudent or just, is not ever adequate motive for discerning that it is essentially the law, and the detail that it is unwise, unfair, imprudent or inefficient is not ever adequate cause for unbelieving it. As perMacCormick positivism, law is a substance of what has been suggested (decided ,ordered, tolerated, practiced, , etc.); as it might be said in a additional contemporary idiom, positivism is the opinion that law is a social creation[9]. Austin thought the theory “simple and glaring.” Though it is perhaps the leading opinion among logically motivated philosophers of law, it is also the topic of opposing clarifications composed with insistent misunderstandings and criticisms[10].

According to Austin and Betham, law is a marvel of big societies with a autonomous: a determinate group or person who have absolute and supreme de facto authority -- they are followed completely or maximum others but do not themselves likewise follow anyone else. The legal principles in that society are a subdivision of the sovereign's instructions: general orders that apply to classes of actions and people and that are backed up by threat of strength or “sanction.” This imperatival philosophy is positivist, for it recognizes the presence of legal systems with outlines of obedience and command that can be determined without bearing in mind whether the sovereign has a ethical right to tenet or whether his orders are commendable. It has two more distinguishing Characteristic. The philosophy is monistic: it signifies all laws as taking a solitary form, implementing responsibilities on their specific subjects, although not himself on the sovereign. The imperativalist admits that final lawmaking authority may be self-limiting, or restricted outwardly by what public judgment will bear, and also that legal systems comprise requirements that are not necessities (for example , definitions, permissions and so on). However they consider these as portion of the non-legal material which is essential for, and part of, each legal system. (Austin is a more generous on this argument). The philosophy is also reductivist, for it upholds that the normative language used in unfolding and asserting the law -- talk of rights, authority, obligations, and so on -- can all be examined lacking rest in non-normative relationships, eventually as concatenations of declarations about obedience and power[11]

 

The concept of natural law and legal positivism.

According to Benson positive law is only considered as law because it has been brought to existence by mankind. Such law can be made based in a procedure which has been determined previously or in an arbitrary manner[12]. As provided by Cooper and Wayne natural law only gives relevance to justice and is in compliance with internal values associated with the nature of humans[13]. Therefore it can be evidently said that with respect to both the concepts of law there can be various possible distortions and the existence of which has been supported by history. According to Banner "The danger of arbitrariness exists always and everywhere when man acts with power in his hands”. Thus the side effects of such distortion cannot be evaded by mankind[14].

Hart and Herbert states that positive law has a benefit that it is very easily approachable and definable therefore it leads to lesser obscurities with respect to its admiration[15]. In addition the concepts of positive which provides the greatest difficulties towards interpretation are those concepts which are held by natural law as abstract concepts. Positive law is implemented in the society either through willful acceptance of such law by the society or the authority being powerful enough to forcefully impose such laws on the people. During the times of dictatorship the most absurd principles were also considered as laws as they had been imposed upon the society. However according to Priel the modern day legal system of the world has come far off the forceful implementation of laws as most of the nations in the world are now a democracy which is the government for the people and made by the people[16].

Relationship between natural and positive law

As positive law sources its inspiration from abstract concept of natural law it is able to function with appropriate adequacy in democracy. This is because almost all social struggles in relation to democracy have been primarily based on these concepts which have been adopted by the society to a significant degree and have been institutionalized by law. Therefore in the natural sense illogical reflection provided as follows cannot be avoided. Latest provided that any provision for the purpose of becoming a legal provision presupposes social struggle which implement it in form of law and it is very evident that the reference to natural law of being more ethical comparatively is superfluous[17]. To make it simple on any occasion, authority, from which ever source it may be derived is what brings into existence and implements law. Therefore positive law is the one which is always talked about. According to Campbell a serious factor is overlooked by such findings which is consciousness[18]. As stated by Leiter consciousness is the root of every such social individual collective process. In addition consciousness itself determines social struggle[19]. The basic notion of natural law itself governs social struggle as they are inspired by it. For instance as provided by the declaration of America and French Revolution all men are born equal and are provided with specific fundamental and inalienable rights, such provisions clearly belong to the area of natural law. Subsequently the proper interpretation of the concept of natural law leads to the establishment of the rule of law through the efforts of the society[20].

However when results are the only thing which consciousness cares for the society is totally not prepared for a reversal in understanding of and therefore subjected to distortion of concepts which can also take place in legal form[21]. This concept is restricted to an Ex Post facto reflex action in relation to instincts where a person rises when he is not given the means of survival and not before it when such deprivation was in the stage of preparation[22]. Therefore the reflection of the society  is not perfect, it operations are only limited to the tangible and obvious situations, which is in the areas of competition and needs, as it itself is competitive and, so stillborn, therefore it is not able to provide support the enduring forces of arbitrary governance and implementation of provisions which are invoked by the time when it is needed. In addition it is indifferent to these principles to the extent it does not come in contact with the individual in a way which is tangible. Then again the concept of natural law comes to the mind of men but only after the event has taken place. Subsequently it can be provided that possible in vocation inter alia in relation to natural law is in relation to search moments when legal positivism is not able to show its connection with history and in such cases natural law functions as the law[23].

 

Conclusion

From the above analysis it can be provided that the aim of both legal positivism and natural law theory is to provide for a better society where law prevails. The natural law theory is based on using moral and ethical principles in relation to law whereas legal positivism focuses on providing the best results to the society by the imposition of law. Both the legal theories work for the betterment of mankind by providing equality and Justice. It is not correct to hold at legal theories in relation to positivism and not consistent with that of natural law theory as positive law in most of the cases are in some form the right from natural law. The above discuss studies which have been conducted in the area of natural law and legal positivism relationship, missed out one significant point in relation to the relationship between legal positivism and natural law theories, which is that as both the theories have the intention to promote law in the society and as both of them are prima facie inconsistent to each other. It is inevitable that application of legal positivism and natural law theory alone cannot be suitable to address the legal needs of the society. As legal positivism is to a large extent providing legal solution in the modern world it can be provided that positive law is a product of natural law in most of its aspects and thus the true nature of natural law theory is often misunderstood.

 

Bibliography

Atkins, Jed W. "Zeno’s Republic, Plato’s Laws, and the Early Development of Stoic Natural Law Theory." Polis: The Journal for Ancient Greek Political Thought 32.1 (2015): 166-190.

Banner, Stuart. "Natural Law in Court: A History of Legal Theory in Practice." (2015): 428.

Benson, Richard. "Bioethics and the Human Goods: An Introduction to Natural Law Bioethics." The National Catholic Bioethics Quarterly 16.3 (2016): 535-538.

Campbell, Tom D., and Jeffrey Goldsworthy, eds. Judicial power, democracy and legal positivism. Routledge, 2017.

Campbell, Tom D., ed. Legal positivism. Routledge, 2016.

Cooper, Kody Wayne. Upon the earth there is not its like--?: Thomas Hobbes’s natural law theory of morality and politics. Diss. 2014.

d'Entreves, Alexander Passerin. Natural law: An introduction to legal philosophy. Routledge, 2017.

Hart, Herbert LA. "The New Challenge to Legal Positivism (1979)." Oxford Journal of Legal Studies 36.3 (2016): 459-475.

Kugler, Peter N., and Michael T. Turvey. Information, natural law, and the self-assembly of rhythmic movement. Routledge, 2015.

Legarre, Santiago. "HLA Hart and the Making of the New Natural Law Theory." Jurisprudence 8.1 (2017): 82-98.

Leiter, Brian. "Marx, law, ideology, legal positivism." Virginia Law Review(2015): 1179-1196.

Loughlin, Martin, and Samuel Tschorne. Public law. Routledge, 2016.

MacCormick, Neil, and Ota Weinberger. An institutional theory of law: new approaches to legal positivism. Vol. 3. Springer Science & Business Media, 2013.

Marske, Charles E., Charles P. Kofron, and Steven Vago. "The Significance of Natural Law in Contemporary Legal Thought." The Catholic Lawyer 24.1 (2017): 5.

Priel, Dan. "Toward Classical Legal Positivism." Virginia Law Review (2015): 987-1022.

Raz, Joseph. "Legal positivism and the sources of law." Arguing About Law117 (2013).

Schauer, Frederick. "The Path-Dependence of Legal Positivism." Virginia Law Review (2015): 957-976.

Tuori, Kaarlo. Critical legal positivism. Routledge, 2017.

Waluchow, Wilfrid. "Legal positivism, inclusive versus exclusive (2001)." Routledge Encyclopedia of Philosophy, London: Routledge, available at https://pt. scribd. com/doc/56008841/Waluchow-LegalPositivism-Inclusive-Versus-Exclusive (accessed on 10 December 2015) (2016).

Wright, Benjamin Fletcher. American Interpretations of Natural Law: A Study in the History of Political Thought. Routledge, 2017.

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