Legal Positivism and Natural Theory

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Law philosophy can be categorized broadly into; analytic jurisprudence, critical theories of law and normative jurisprudence. Austin (1977) projects analytic jurisprudence as the basic nature in which all other common laws are established. It is the fundamental platform, which provides the distinction of law from non-law through provision of required conditions of existence of law. Normative jurisprudence entails the scrutiny and appraisal of normative issues that regard the law. These issues may include obligations to obey the law, limitation to freedom and the punitive measures to be taken in event of failure to comply. Critical theories of law test conventional forms of legal philosophy (Murphy, 2006).

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Natural law theory proponents believe that law can only be fully articulated with reference to moral notions. This is the overlap thesis, which is subscribed to by the natural law theory. William (1979) represents the strongest form of overlap thesis. According to William (1979), this law is dictated by God himself and is most superior law, which cannot be obliged by any other law. It is the binding law in the universe; all human laws derive all their authority from this superior law. William (1979) puts forth two suggestions that entail the theoretical core of classical naturalism. The first one is that, the natural law cannot be conflicted by any legal standards and secondly, is that all laws expressly derive their validity from the natural law.

This notion is further collaborated by neo-naturalism law by John Finnis. He articulates that the naturalism law by William (1979) and Aquinas must not be misunderstood as a requirement for the existence of law. Finnis outlines that arguments based on classical naturalism were more bent on explaining the relationship morals and law rather than highlighting the concept of its validity in law. Finnis views the overlap thesis as an important ingredient in justifying state coercion. Therefore, a law deemed to be unjust, can be valid legally. However, this does not fully justify the implementation of state coercion. According to this standpoint, an unjust law may be legally binding but cannot be considered as law fully.

On the other hand, Fuller (1964) does not concur with this idea of morals constraining the law. In his view, he regards law as subject to morals that require eight values. Firstly, he argues that rules must be outlined in general terms. Secondly, promulgation of the rules should be done publically. He further points out that the effect of the rules must be prospective and must be put forth in a manner that is clear and understandable. The rules must not contradict one another and at the same time ensure that they do not call for more powers beyond the affected parties. Fuller (1964) continues by stating that the laws must be consistent and frequent changes should not have undertaken rendering the rules unreliable. Lastly, the administration of the rules must be according to their wording. Fuller (1964) is categorical that no set of rules ca be considered as law if they do not satisfy these minimal requirements.

Legal positivism completely rejects all forms of naturalism. This argument is constituted of the separability, conventionality and social fact theses. Separability thesis rejects overlap thesis that seconds naturalism by arguing that the law and morality do not overlap, thus it cements the foundation for legal positivism. Conventionality thesis argues that law is based on convention of the society. The social fact thesis stresses that to ensure the legal validity of a set of rules; the rules must be based on social facts. One philosopher that concurs with legal positivism is Hart. He asserts that legal validity is determined by the rule of recognition that lays the guidelines for the creation, modification and arbitration of law. Raz (1979) on the other hand seems disagree with Hart’s view of master rule of recognition on determining the criteria of legal validity. Raz was a student of Hart and has been instrumental in continuation of Hart’s arguments after his death which also includes editing his teacher’s book titled concept of law. In his work, Raz (1979) engages ideas on theory of legal positivism, norms and authority. He emphasizes that a law still remains a law even if it is considered unjust. His argument suggests that a law cannot be grounded on morality.

Law functions as a system through laid out guidelines and rules which influence behavior of people. Social institutions enforce the rules and guidelines wherever possible thereby influencing how people relate to one another. For instance, Finnis (1980) points out that total failure of his eight requirements results into a bad system of laws which cannot be regarded as a legal system at all. According to Dworkin (1978) interpreting constructively the history of the legal system amounts to the law. He argues that some systems based on morals are wrong since some morals held dear by the people are wrong.

Therefore, according to Dworkin (1978), for law to function as a system effectively, it must not rely on these morals wholly as they may be misguiding. He points out that the right answers thesis should be applied especially where people’s legal rights are overstepped and judges should not be allowed to handle such difficult cases. In his right answer thesis, he argues that the law is a system which will yield the right answer if appropriately interpreted. Dworkin (1978) suggests that law is a self-interpretive system that every individual can fit in is he/she applies himself/herself correctly in the legal question. Dworkin (1978) does not concur with social fact thesis of legal positivism. He believes that social facts ca not explain the authority of some legal standards. He believes there are two factors that must be considered for the successful interpretation of a law. He points out that the interpretation must ultimately fit together with existing legal system in the society. The other consideration is that interpretation must be in the light of moral justification. According to Dworkin (1978), the relationship between arbitration and jurisprudence in the legal system is so close that any judge’s opinion is legal philosophy in its own sense

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Austin (1977) borrows heavily from Jeremy Bentham in the social facts thesis. He points out that a legal system can be distinguished by the presence of a sovereign person who draws obedience from most people in a society while he/she does not obey another person in the society (Jeremy, 1970). Austin disregards other rules that accord citizens the power to extinguish, create or modify the obligations of other citizens. For example, contracts and wills are governed by rules which cannot be classified squarely as restrictions or requirements. Austin (1977) ignores the complexity of the system of rules by not considering the presence of secondary rules that influence the very existence of primary rules. Therefore, Austin’s argument is inconclusive and unreliable in the interpretation of the social fact thesis. It is difficult if not impossible to identify a sovereign in many societies. This difficulty is experienced by Austin and therefore he fails in the explaining the legal systems continuity.

Hart (1994) views the social fact thesis differently. He is of the view that Austin’s rule is no conclusive and provides an account for only the primary rules that require or prohibit certain kinds of behavior. Hart puts it rightly when he states that for rules to be considered valid, they must be recognized and accepted by the common public as the rules that govern the behavior of officials.

Finnis’s argument is based on natural law and rights. It puts forth goods that are basic to humans. However, he arouses controversy when he outlines the requirement for practical reasoning. This argument seeks to support the Catholic Church on its moral standpoint on a host of controversial matters such as masturbation and contraception hence compromising the plausibility of the requirement that seeks to respect every basic value in every basic act. His argument further appears to disregard consequentially in ethics (Stephen, 1997).

William believed that human laws were like scientific laws that were waiting to be discovered. He argued that they were creations by God. He believed that law flowed from the superior to inferior. He pointed out that the inferior was obliged t obey. He considered humans as noble sublunary beings as they are able to reason and have a free will. However, he pointed out that there are limitations to the free will which were guided by what he called the faculty of reason (William, 1979). William’s argument does not hold water when he argues that the king since he is superior can do no wrong. He actually believed that the king is not only incapable of doing wrong, but he is also incapable of thinking wrong. His statement that to king there is no folly or weakness is wrong and worships superiority. He seeks to imply that the king is above the law. He continues by stating that the law may be illogical and subject to criticism. One such instance is portrayed by the statute of King Edward IV that prohibited all noble men below the degree of a lord from wearing pikes on their shoes which a had a length of more than two inches. This was an oppressive law which handed down harsh penalties to those who disobeyed it not to mention that the law did not have a sense of common utility. Although William did not invent the separation of powers concept, he concreted the idea.

Most philosophers have made law the centre of their discussions. Enquiries have been made into the nature of law and its coming into being. Philosophers have come up with different explanations and answers to these questions. Interpretation of the law also poses another challenge since it is mostly political thereby compromising the moral objective of the law. The philosophers remain divided sharply on the nature of law thus legal philosophy is faced with a dilemma on this subject of legal positivism and natural conjecture.

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References

Austin, J. (1977). Lectures on jurisprudence and the philosophy of positive law. St. Clair Shores: Scholarly press.

Dworkin, R. (1978). Natural law revisited. University of Florida law review vol. 34, no 2. pp 165-188.

Finnis, J. (1980). Natural law and natural rights. Oxford,larendon press.

Fuller, L. (1964). The morality of law. New Haven, Yale university press.

Hart, H. (1994). The concept of law 2nd edition. Oxford, Oxford university press.

Jeremy, B. (1970). Of laws in general. London, Athlone press.

Murphy, M. (2006). Philosophy of Law: The fundamentals. Hoboken, NJ,Wiley-Blackwell.

Raz, J. (1979). The authority of law: essays on law and morality. Oxford,Clarendon Press.

Stephen, B. (1997). Natural law: a companion to ethics. New York, NY, ackwell publishers.

William, B. (1979). Commentaries on laws of England. Chicago, the University of Chicago press.

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