natural law and positive law essay

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Introduction

Early formulations of the concept of natural law

natural law

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natural law , in philosophy , system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law .

There have been several disagreements over the meaning of natural law and its relation to positive law. Aristotle (384–322 bce ) held that what was “just by nature” was not always the same as what was “just by law,” that there was a natural justice valid everywhere with the same force and “not existing by people’s thinking this or that,” and that appeal could be made to it from positive law. However, he drew his examples of natural law primarily from his observation of the Greeks in their city-states, who subordinated women to men, slaves to citizens, and “barbarians” to Hellenes. In contrast, the Stoics conceived of an entirely egalitarian law of nature in conformity with the logos (reason) inherent in the human mind . Roman jurists paid lip service to this notion, which was reflected in the writings of St. Paul (c. 10–67 ce ), who described a law “written in the hearts” of the Gentiles (Romans 2:14–15).

St. Augustine of Hippo (354–430) embraced Paul’s notion and developed the idea of man’s having lived freely under natural law before his fall and subsequent bondage under sin and positive law. In the 12th century Gratian , an Italian monk and father of the study of canon law , equated natural law with divine law—that is, with the revealed law of the Old and New Testaments , in particular the Christian version of the Golden Rule .

St. Thomas Aquinas (c. 1224/25–1274) propounded an influential systematization, maintaining that, though the eternal law of divine reason is unknowable to us in its perfection as it exists in God’s mind, it is known to us in part not only by revelation but also by the operations of our reason. The law of nature, which is “nothing else than the participation of the eternal law in the rational creature,” thus comprises those precepts that humankind is able to formulate—namely, the preservation of one’s own good, the fulfillment of “those inclinations which nature has taught to all animals,” and the pursuit of the knowledge of God. Human law must be the particular application of natural law.

Natural and Positive Law Essay

Introduction.

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The debate on natural law and positive law has taken different forms in different law and religious forums. There are those who believe that the debate centered on the distinction between morality and law. The connection between law and morality has largely been the main issue that the different types of debates have not been able to address. The meaning attributed by theorists of natural law and positive law is always geared toward supporting their point of argument. From its initial definition, natural law means that there is a force above that has the monopoly of conferring laws to human beings, which include inherent rights (Boyd, 2010).

Natural law is a God-given law that is supposed to be obeyed without any questioning. The early theorists of natural law were of the view that natural law is the command of God and it was to be obeyed even in instances when its obedience caused injustice. Natural law is largely unwritten and does not depend on enforcement mechanisms. Individuals get to understand the command under the law through nature and reason. Natural law has been a major source of debate in legal philosophy. The focus of natural law has been on unchangeable, absolute and universal morals. It is true to assert that natural law has been through a moral fabric, which seems insensitive to the changes in society (Soper, 2001). From universal morals, there is the development of a mode of dealing with what is considered right or wrong. The moral prepositions are the main tenets of natural law. Positive law mainly means that there is a body entrusted with the powers to make laws for others. This essay will discuss the tenets of natural and positive law, providing in-depth elaboration on the advantages of each. The moral authority in natural law is derived from religion. It is, in other instances, derived from human beings’ rationality. In medieval ages, the main source of any natural law was religious law and other moral related documentation. Throughout time, the meaning changed to a philosophical basis that has made extensive coverage to other modes of laws. The main attributes of natural law are based on the same form of understanding, which has an appeal to human beings’ reason, intellect, and experience. The secular perception of the law has been the most recent development of natural law. Natural law has, in many instances, sought to integrate morality with law, thereby making them inseparable. Any legitimate legal system is made up of a morally grounded thread of moral values (Sullivan, 2007). Moral tenets like justice define the current approach to natural law. In some instances, the words have been used to mean natural law. The law has been questioned on the basis that it is not easy to have a universal law based on morality. On the other hand, the positive law simply implies a law that is made by individuals as opposed to a law from nature, which is known as a reason or God. Positive law is a product of individuals. In democratic regimes, it is the legislature that takes the role of making laws. The legislature is entrusted with the powers to make the laws that are supposed to govern the entire population. The nineteenth-century natural law was mainly tailored to the tenets of church law. Natural law changed entirely with the consistent questioning of morals and whether a law can be based on morals. It was argued that it was wrong to let a body of law governing individuals of different beliefs to be allowed to impose obedience (Rose, 2010). Philosophers of the positive law have consistently observed that a law should be created by a legitimate authority composed of the people and which can be questioned. Natural law has been criticized for its lack of sanctions to command obedience. Lawyers in the area of natural law have failed to show the remedy in instances whereby individuals do not obey the law (Boyd, 2010). The positive law ideology is likable since it gives a room for a change of the law in different phases of the community’s life cycle. Under positive law, the law is perceived as something worth changing due to the changing times. The change may also be engineered by the will of the people. If the people who are governed by a certain law want to change it, it is clear that it should be changed. Positive law plays different roles that are felt at varying levels in society. It creates harmony even in functions that would seem conflicting. It does not peg its validity on the norms as natural law does. Positive law is morally neutral and the law promulgating organ is guided by what the people want. A law that seems immoral from the outset may be accepted by the majority, thus becoming part of the binding law (Robertson, 2007). Legal systems in the world today have sought to make laws, while at the same time observing positive law, as well as the tenets of natural law. The Bill of Rights in constitutions is a reflection of the natural law. The right to equality, for instance, is a provision that captures the moral element of natural law. The constitution has many elements derived from natural law since it does not change easily like other laws. The rules of natural law have largely remained unwritten. Positive laws have, in several instances, made it possible for functions of government to be realized (Boyd, 2010). Natural law has its merits since it is mainly used as the checking body of law. For a law to be held to reflect the will of the people, it ought to have an element of natural law. In the modern setting of states whereby the process of lawmaking is inclusive, both natural and positive rules should be considered. Under positive law, the law will be flexible and reflect the will of the people. The nature of the law can be checked by checking whether the law has violations of the norms. The two types of laws agree on the point that laws are formed for a specific reason (Boyd, 2010). There is an agreement that code is not necessarily the written law. Unwritten law has the same effect as written law provided it is agreed upon. Positive and natural law insist that moral concerns do not form part of the law. Natural law presupposes that the law should be obeyed even when it is wrong. Such a view is irreconcilable with the difference between what the law provides and what individuals do (Kindregan, 2004).

Philosophical theorists on positive law and natural law have appeared to differ vehemently. The main points of contention have been the foundation of the law. There are some who observe that law is supposed to command the subjects to obey. The natural theorists are of the opinion that law does not need to be written to offer the effect of obedience. The main disagreement has been in regard to who is supposed to make the laws. Natural lawyers observe that law is a command from God, which should be obeyed and not questioned. The essence of nature and reason has been illuminated by indicating how natural law exists freely. Theorists of medieval ages have found it reasonable to obey laws without questioning them. The positive law theorists have opposed the contention that law can operate without the support of the people it seeks to govern. The unwritten nature of the natural rules has rendered the rules questionable. It is the understanding that law is the command of the majority that has persuaded positive law supporters to assert that there must be an authority to make the law. The existence of both laws in the constitution has been due to the fact that the Bill of Rights is mainly based on morals. The existence of positive law without natural law is not possible. It may not be possible for the parliament to ascertain the extent of the laws they are making. This is due to the fact that some of the unwritten laws are checked by unwritten natural laws. The arguments against natural law have been to the effect that individuals should be left to decide the type of law to govern them. People should take part in the process of making the law in order to know the law they are supposed to obey.

Boyd, N. (2010). Canadian law: An introduction. Toronto: Nelson Education. Web. Kindregan, C. P., Jr. (2004). Same-sex marriage: The cultural wars and the lessons of legal history. Family Law Quarterly , 38(2), 427–447. Web. Robertson, M. (2007). Telling the law’s two stories. Canadian Journal of Law and Jurisprudence, 20(2), 429–451. Web. Rose, J. (2010). Studying the past: The nature and development of legal history as an academic discipline. Journal of Legal History, 31(2), 101–127. Web. Soper, P. (2001). In defence of classical natural law in legal theory: Why unjust law is no law at all. Canadian Journal of Law and Jurisprudence, 20(1), 201–223. Web. Sullivan, B. (2007). Rape, prostitution and consent. The Australian and New Zealand Journal of Criminology, 40(2), 127–142. Web.

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Legal positivism and natural law

Table of Contents

Introduction

Law in general is defined as a behavior regulating system created by the people or governments and enforced by social institutions of governments to ensure compliance. It is a system of rules that govern right and wrong in the society. There are different categories of law such as criminal, common, civil and statute laws. All these however, have one thing in common. They are all behavior regulating rules. Scholars have however, come up with theories that explain these rules and regulations. There is the Natural Law theory (NLT), Positive Law Theory, The Realist Theory of Law, Legal Positivism (LP) and Marxist Law Theory. Among these, Legal positivism and NLT are conflicting views about the meaning of law and its connection to justice and morality. NLT argues that morality is the foundation of law while the other argue that social institutions, especially the government, create laws and impose such laws on people. This essay will explain Natural Law Theory and it theorists to understand how they perceive the law. This perception bears great importance to the society. Without it, there may be no just and fair society. Without it, even legal positivism cannot survive, because there will be no institutions to form any laws.

Natural Law Theory

Proponents of the Natural Law Theory (NLT) believe that natural laws have a direct relationship with the God given morality. One of the chief philosophers of the theory, St. Thomas Aquinas, argued that the law is a natural occurrence of God’s concept of a society guided by a moral code for mankind’s benefit as they live in the universe. It is from this moral code that the legal moral framework is founded. He stated that if in any case the man-made laws come into conflict with the divine code, then God’s natural laws should triumph. These laws are designed to discourage man-made corruption and ensure common good within the society. For that reason, they strongly believe that any “unjust law is no law at all”, just as St. Augustine put it. If legal positivism were to rule without the existence of natural law, there would be no justice. It is because people would act, especially government officers, justifying their acts as law. The meaning of justice will be based on what these people deem it to be.

Philosophers still come up with their concepts about this term revising previous theories or criticizing them. Consider professor Lon N. Fuller. Fuller analyzed an opposing philosophy about law, legal positivism, arguing that it was “intellectually unsound” for the society. He argued that the purpose of law is to discover the elementary values of justice fundamental to the relations of men, and use these values to create legislations for the relations of men. In this, reason was paramount. A command by a sovereign for people to follow the law is not enough to discover the “right” or “just” of the law.

Natural law theory forms subscribe to the hypothesis that there is a connection between morality and the law. Classical law theory argues that law can therefore not be comprehensible without reference to moral philosophies. As the founding father of natural law hypothesis, although informed by Plato and Aristole’s ideas, Aquinas distinguished this kind of law into four: natural law, eternal law, divine law and human law. Natural law entails the principles of eternal law that guide human behaviors to ensure they possess reason and free will. Human law are man-made laws, but they have to conform to natural laws, otherwise if one is in conflict with it, then natural law precedes it. This explains why when one goes on a quest to murder people and then defends himself or herself using the legal positivism theory, morality should prevail. If he is justified to have done it as requested by the government, moral reasoning should still explain such actions otherwise other people may follow suit and justify their actions in a similar manner. In doing so, any community would have lost order.

Proponents of the theory also continue to present important reasons for its use even in contemporary society. John Finnis for example, concurred with the classical natural law principles but did not exclusively agree that an unjust law is no law. According to Finnis, an unjust law can be legally binding, but not obligatory. Such a law has no justification to the coercive powers of the government because it lacks the moral ideals that make a rule a law. This explanation would be perfect for the prosecution of Nazi war criminals who acted according to the unjust laws of the institutions. Finnis theory has the following as essential goods for humanity: “aesthetic experience, life, play, religion, knowledge, practical reasonableness, and friendship and sociability”.

Fuller’s philosophy was a revival of the classical natural law theory principles after the legal positivism took over for some time. Fuller criticized this philosophy, arguing that it was not flexible enough to handle the constant changing situations and problems of life in the society. In his argument, he noted that legal positivism gives room for lawless laws that achieve nothing. In this he considered that human activities are purposive and therefore when making judgement, laws should make references to such purposes and the achieved ends. This philosophy infers that a rule is only considered a law if it is capable of guiding behavior as the rule itself dictates.

Contrary to the NLT, Legal Positivism theory argues that the law is a collection of rules and regulations formed by the social institutions that arise from developing customs and result into a quantifiable legal code. They oppose the argument that there is a connection between the formation of legal laws and morality and ethics. The initiator of this philosophy is Jeremy Bentham who argued that there is no way that laws were self-determining without the government. According to him, the government created the laws. His ideas were furthered by John Austin who also argued that the law is just “a command issued by a sovereign”. Other opponents of natural law are John Stuart Mill and his father John Mill. H. L. A. Hart also came up with a new idea in legal positivism. He refuted the idea of law as a command, but still maintained that their foundation need not to be based on moral judgement.

It is true that the laws cannot be formed without the government, but the government is formed by the people who are then guided by their natural moral standards to form laws that regulate certain immoral behaviors or those that can contribute to immoral behaviors. Additionally, legal positivism encourages obedience to the law because it is the law, and this destroys the basis of justice in the law itself. Hitler’s laws in Germany are a good example of the devastating effects of legal positivism. Millions of people were killed because the law was the law and not because they deserved to die. There was no justice, and the role of the law is to ensure justice and order.

Although the natural law theory’s first philosopher is Aquinas, others have come up with philosophies that fit the current human situations. The principles of eternal law that guide human behaviors to ensure possession of reason and free will is a constant factor in natural law. In one of the last versions of the natural theory by Fuller, he argues that a judge has to determine what is right for the people of concern, what is right for the purpose for which the case is brought and consider the end result. The trend in these philosophies show some adaptableness of the theory with situations and easy applicability.

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Natural vs Positive Law

Info: 603 words (2 pages) Essay Published: 6th Aug 2019

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Jurisdiction / Tag(s): Canadian Law

How Is The Theory Of Positive Law Represented In The Canadian Constitution?

Positive law theory states that law is a set of rules and regulations put together by the government, and that all the citizens are obligated to abide by the law for the overall good of the nation. Canadians have accepted the thought of government interference in their lives far more understandingly than Americans. The government authority in the royal colony of New France presuming an effective and overprotective role over the society, back in the days during the European settlement, is an example of this distinction. In 1867, John A. Macdonald, Canada’s first prime minister, sought a powerful federal government, however, other government heads stressed on establishing a provincial government level as well. They also approved on supporting the new central administration by offering it control over taxes, trade and commerce, transportation, criminal law and the selection of superior judges. The creators of the Canadian constitution also provided the federal government with the universal authority “to make laws for the peace, order, and good government of Canada” (Alexandrowicz et. al., 2004, p. 90) in s. 91 of the Constitution Act, 1867. The central government made use of this authority in times of war and riots. This summoned the “War Measures Act during World War I and World War II and also during the October Crisis in 1970” (Alexandrowicz et. al., 2004, p. 91). Even though, the government has implemented a less domineering standpoint during peacetime, there have been times when it claimed its general authority in response to an apparent emergency. In 1975, the Canadian economy was facing speedily increasing inflation rates as well as high unemployment levels. As a result, the government conceded the Anti-Inflation Act, under Prime Minister Pierre Trudeau, giving it the authority to fix wages and control prices. The provincial government accepted the plan and signed agreements with the federal government. This is how the theory of positive law has been represented in the Canadian Constitution.

How Is The Theory Of Natural Law Represented In The Canadian Charter Of Rights And Freedoms?

Natural law theory states that human laws are developed from everlasting and fixed beliefs and values controlling the natural world and that the use of reason can help the society become aware of these laws. In the early 1980s, when the Canadian legislators planned to revise the constitution and give enhanced protection to the human rights of common people and minorities, they ensured to defend the authority of the central and local governments. Many basic freedoms listed in the Canadian Charter of Rights and Freedoms exhibit a natural-law viewpoint. These consist of the “right to freedom of conscience and religion” and the “right to life, freedom and safety of the person” (Alexandrowicz et. al., 2004, p. 92). This shows that the rules and regulations established today originated from unchangeable principles and people choose to follow these laws because of their own natural values and morals. This led to the need of protecting these principles and therefore providing Canadian citizens with enough rights and freedoms which were recorded in the Canadian Charter of Rights and Freedoms. This enables them protect themselves and their beliefs asserting the general standpoint of the natural-law theory.

Works Cited

Alexandrowicz, G. et al. (2004). Dimensions of Law. Toronto: Emond Montgomery Publications Limited.

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Natural law
natural law, in philosophy, system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law. Early formulations of the concept of natural law There have been several disagreements over the meaning of natural law and its relation to positive law.
Natural Law vs. Positive Law
Natural and Positive law both strive towards a common goal, that is the ultimate happiness of the people. The only difference is how they go about obtaining it. Natural law is based on the divine and therefore people can, in a sense, govern themselves by rules set out by the divine.
Legal positivism and natural law Essay Example [1276 Words
There is the Natural Law theory (NLT), Positive Law Theory, The Realist Theory of Law, Legal Positivism (LP) and Marxist Law Theory. Among these, Legal positivism and NLT are conflicting views about the meaning of law and its connection to justice and morality.
Natural vs Positive Law
Positive law theory states that law is a set of rules and regulations put together by the government, and that all the citizens are obligated to abide by the law for the overall good of the nation. Canadians have accepted the thought of government interference in their lives far more understandingly than Americans.