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LEGAL POSITIVISM THEORY VS NATURAL LAW THEORY
Transcript of LEGAL POSITIVISM THEORY VS NATURAL LAW THEORY
NATURAL LAW THEORY
LEGAL POSITIVISM CRITIQUES
The main argument (for or against) is the positivist doctrine of separation between law and morality, whereas the naturalist believes the law can only be looked at from a moral standpoint. This is the defining point between a positivist and a natural law theorist.
A body of principles that are considered to be inherent in nature and have universal application in determining whether human conduct is right or wrong, often contrasted with positive law.
Natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself.
Positive laws are precisely those laws most in need of reasons and justifications. It is for this reason that the rise of positive laws is accompanied by the rise of legal science as a means of offering reasons and justifications for laws.
Therefore, that law, today, is infused with the language and practice of the social sciences, from law and economics to the sociology of law and other normative socio-legal studies.
Natural Law does not refer to the laws of nature, the laws that science aims to describe.
According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. While being logically independent of natural law legal theory.
Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that it is socially constructed.
It is a school of thought in modern and contemporary jurisprudence (a legal system) and the philosophy of law.
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.
The principal claims of legal positivism are:
that laws are rules made by human beings;
that there is no inherent or necessary connection between law and morality.
Legal positivism stands in opposition to various contrary ideas in the tradition of natural law, a body of legal theory asserting that there is an essential connection between law and justice. Legal positivism incorporates the “separation thesis” - the idea that legal validity has no essential connection with morality or justice.
ADVANTAGES OG LEGAL POSITIVISM
There is no necessary connection between law and morality.
legal validity is determined ultimately by reference to certain basic social facts and the main line of natural law theories that no sharp distinction can be drawn between law and morality.
First, all law are required to be written, where positivism make sure that the government will follow stated rules and apprise the members of society of their rights and obligations. In a legal system run according with positivist tenets, litigants would never be unfairly surprised by the government imposition of an unwritten legal obligation that was previously unknown.
Second, positivism control judicial discretion. In some cases judges are not satisfied with the outcome of a case that would be decided by narrow law.
ADVANTAGES OF NATURAL LAW
Natural moral law is a simple, universal guide for judging the moral value or human actions and the purposes which proposes for human existence are common for all men.
Natural law appeals to the sense we have that morality is more than just a matter of what people's preferences and inclinations may be. Even though different cultures and individuals may reach different conclusions on the rightness or wrongness of a moral action there is a prevailing sense that some things are of intrinsic value.
Natural law concentrates on human character and its potential for goodness and flourishing rather than on the rightness or wrongness of particular acts and so it allows for some measures of flexibility.
NATURAL LAW CRITIQUES
Natural law depends on accepting the view that good is what is found in nature.
Aquinas assumed that all men seek to worship God, which many would see as artificial not natural.
Aquinas think of every individual and every part of every individual as having a particular functions to fulfill.
There is no room within natural moral law for situationism, relavtism, consequentialism or individualism.
Aquinas committed the naturalisitic fallacy.
Aquinas understanding of human purpose is limited.
Legal positivism is a school of thought of philosophy of law, largely developed by eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin.
Although the positivist position is complex, the central claim of legal positivism is the following:
"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.
Natural law, or the law of nature is a philosophy of law that is determined by nature, and so is universal. Classically, natural law refers to the use of reason to analyze human nature - both social and personal — and deduce binding rules of moral behavior from it. Natural law is often contrasted with the positive law of a given political community, society, or state.