The Difference Between Natural Law and Legal Positivism
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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
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
Bibliography: 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 2001][accessed 4th November 2012] Plato.standford.edu/entries/legal-positivism/ [2003][accessed 4th November 2012] http://users.ugent.be/frvandun/Texts [no date][accessed 4th November 2012] Users.ox.ac.uk/~all.s0079/positivism2.pdf [no date][accessed 4th November 2012]