The Difference Between Natural Law and Legal Positivism

THE DIFFERENCE mingled with NATURAL LAW AND LEGAL POSITIVISM This essay is going to controvert and analyse the residuals amidst two basic linguistic towers- ingrained impartiality and wakeless positiveness. gibe to Hume, in that location atomic number 18 two realms of military man enquiry , unmatched 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 look at in the principle of immanent policefulness of nature are cognize as infixedists while those who believe in the principle of sub judice positivism or positive law are kn sustain as positivists. This is a brief over weigh of the two principles of inherent law and lawful positivism. congenital police force Natural Law started with the ancient Greeks and suggested that thither was a higher office staff in control of human existence. Natural law deals with the combination of law and ethics and is sour ced 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 indwelling law. Naturalists believe an unjust law is not a law. Doherty verbalize One of the classical theories of natural law is that there are trustworthy principles of human conduct, awaiting discovery by human reason, with which man-made laws must line up if it is to be valid2 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 tyrannical to do good and avoid abhorrence. Aquinas believed that human laws that do not correspond to the natural law are corruptions of law. These are human laws that deficiency the character of law that binds moral conscience 3 The term natural lawis ambiguous in that it refers to a type of moral surmisal as well as a ratified opening. 1 2 Dennis Lloyd The Idea Of Law(1964)p. 80 Michael Doherty JurispudenceThe philosophical system Of Law(Third Edition)(2004)p. 132 3 Ibid p. 151 UP05/11/2012-031535 WM05/11/2012-031538 MIA120-3-FY A12a1 R1204531 C78D1638A2748CDB50B5907EB2217613C84694D9BLegal 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. jibe to well-grounded positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law4 Some positivists were Bentham, capital of Texas, 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 unlike 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 weigh is the social test of what is moral conduct. Austins particular theory of law is often called the command theory The three basic points of Austins theory were- the law is a command issued by the uncommanded commanding officer , the commands are backed by threats and a autonomous is one who is habitually obeyed. Kelsen was of the view that the nevertheless 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 classical person or group who collapse supreme and absolute de facto power they are obeyed by all or most others besides do not themselves similarly obey eitherone else5 Positivists say ought is important but should be seperate and one should avoid trying to derive an ought from an is. Natural lawyers believe that law is necessarily connected to morality, whereas legal positivists deny that. This is the study difference between positivist and natural law thinkers.Natural law is the combination of laws and morals while legal positivism is the seperation of laws and morals. Legal positivism declares that morality is irrelevant to the identification of what is valid law and that the criteria for the validity of a legal rule or law in a society is that it has the warrant of the sovereign and will be enforced by the sovereign and its agents. Raz, a positivist, state that the validity of a law can never depend on its morality 6 Positive law or positivism is 4 5 www. iep. utm. edu/legalpos/ April 17 2001accessed 4th November 2012 Plato. tandford. edu/entries/legal-positivism/ 2003accessed 4th November 2012 6 Jos eph Raz The Authority Of Law Essays On Law And Morality(1979)p. 47 UP05/11/2012-031535 WM05/11/2012-031538 MIA120-3-FY A12a1 R1204531 C78D1638A2748CDB50B5907EB2217613C84694D9B different from natural law because it calls for a certain measure of regularity of observance for without this feature, it would hardly be entitled to rank as law at all. A natural law on the other die may stll be held to be valid even if it is never or scarcely even observed. 7 Legal positivism will only work in a community where it is widely accepted. Hart suggested that the legal strategy is a closed logical system where decisions may be deduced by logic. For natural lawyers- laws will be morally correct. For positivists- the moral picture is a social standard for people to aspire to. Another major difference between the principle of natural law and the principle of legal positivism is that natural law is not constructed by human beings while legal positivism is constructed by humanbeings through the statedraws from lawmakers and the process of lawmaking. There are two aspects, therefore, that emphasise the contrast between positivism in its caricatured exploit and natural law theores. First,law is exclusively the premise of the legal caste(incluing legilsators) This deprives law of any spurious claims of intrinsic morality and ensures the individuals right to his own conscience, while reserving the legal systems right to punish him for transgressing. Secondly, it allows for specific statements about the nature of valid law which approximate to the lawyers experience. 8 Natural law is unwritten while legal positivism consists of the written rules and regulations by the government- codes, acts. Another distinction is that natural law is the order of conviviality(literally, the order of sustenance together)9 the conditions of conviviality are universal. Legal positivism on the other hand is specific to a particular area. While positivism states that the archetype of law is si mply what the legal system in a accustomed society recognizes as law, naturalisation considers law to be an ideal, commonly share by human societies10Natural law follows a test.If it fails the moral test, then it is not good law. Positivism doesnt follow that test. Some laws may lack in morals but still be good law. condescension the distinctions between natural law and legal positivism, there is a requirement connection between the two principles. Natural law flows into legal 7 8 Dennis Lloyd The Idea of Law(1964)p. 97 Michael Doherty Jurispudence The Philosophy Of Law(Third Edition)(2003)p. 155 9 http//users. ugent. e/frvandun/Texts no dateaccessed 4th November 2012 10 Michael Doherty Jurispudence The Philosophy Of Law(Third Edition)(2003)p. 155 UP05/11/2012-031535 WM05/11/2012-031538 MIA120-3-FY A12a1 R1204531 C78D1638A2748CDB50B5907EB2217613C84694D9B positivism indirectly because it is impossible to devote a legal system without fidelity to the rule of law and formal justi ce. The connection between law and critical morality is necessary in that it is not contingent. It applies to all law and every legal system.The proposed interpretation of every law in every legal system can easily be challenged on the ground that it is not morally defensible, whether the challenge succeeds or fails in a particular instance11Any positive law that conflicts with natural law is not really law at all. As a result of this, there is no moral or legal obligation to obey it. commonwealth will not follow a law that they think is morally repulsive. A rule is legally valid if theres a moral right to enforce it. If people do not have morals or reason, it will be factually hard to have a legal system.Radbruch said a law could not be legally valid until it had passed the tests contained in the formal criteria of legal validity of the system and did not contravene basic principles of morality12 Natural law and legal positivism are undoubtedly interwined and inter-related. The v alues of fairness, equity, justice, honesty, humanity, dignity, prudence, abstention from force and a host of other values that conduce to cooperation and coexistence play a prominent role in the law even when they are not incorporated in any formal source of law. 13 In conclusion,in order to know what your legal rights are, you need to look at what laws your society has. In order to know what your moral rights are, you need to formula out what is the true morality. 14 Adaeze Aseme. 11 12 Users. ox. ac. uk/all. s0079/positivism2. pdf no dateaccessed 4th November 2012 Michael Doherty Jurispudence The Philosophy Of Law(Third Edition)(2003)p. 157 13 Ibid. P. 39 14 Michael Doherty Jurispudence The Philosophy Of Law(Third Edition)(2004)p. 39 UP05/11/2012-031535 WM05/11/2012-031538 MIA120-3-FY A12a1 R1204531 C78D1638A2748CDB50B5907EB2217613C84694D9BBIBLIOGRAPHY Books Lloyd, Dennis, The Idea Of Law(1967) Raz, Joseph, The Authority Of Law Essays on Law And Morality(1979) Doherty, Michael , Jurispudence The Philosophy Of Law(Third Edition)(2003,2004) Internet Sources www. iep. utm. edu/legalpos/ April 17 2001accessed 4th November 2012 Plato. standford. edu/entries/legal-positivism/ 2003accessed 4th November 2012 http//users. ugent. be/frvandun/Texts no dateaccessed 4th November 2012 Users. ox. ac. uk/all. s0079/positivism2. pdf no dateaccessed 4th November 2012