Natural Law Theory and vs. Positivism

In attempting to garner an understanding of the nature of law, early legal philosophers and academics formulated what has come to be known as the natural law theory, and has become a literal cornerstone of the development of modern legal thinking.  Although somewhat limited in modern jurisprudential thinking, natural law has had a tremendous impact on our understanding of what law means in society as a baseline from which to build more complex theories.  In this article, we will look at some of the major propositions underpinning the concept of natural law, and the corresponding strengths and weaknesses of this fundamental interpretation of the legal function.

Natural law starts with the basic premise that the law is driven by morality, and consequently is affected by it.  With a history extending back to Aristotle and other early philosophers, the natural law theory has traditionally linked the law with religion and an innate sense of justice, rather than the more pragmatic approaches of some other theories.  Although this might sound rather basic, the principals have been developed and refined through academic debate for centuries ultimately leading to a far more sophisticated theory of the nature of law.  The idea that all law is subject to an unwritten code of morality is fundamental to natural law.  This also throws up some potential problems in terms of civil regulation.  Certain natural law theorists suggest that for a law to be binding on the citizen, it must conform to this sense of natural justice.  However, there is clearly no definitive objective concept of morality, which casts doubt over this principle.  Additionally, the prospect that a law may be disregarded in favour of some higher sense of morality doesn't conform in reality, considering the potential implications of consistently disregarding law on the grounds of the subjective concept of justice. 

Furthermore on this primitive understanding of natural law, the citizen in contravention to the laws of his state, could attempt to excuse his actions through a justification of 'immoral' laws.  This would also create a state of disorder, given the natural variation of personal opinions, which would ultimately render society unworkable.  For this reason, the natural law scheme has failed to garner modern academic acceptance, of course with a few exceptions.

Natural law has been proposed as a consideration in trying war criminals, on the basis of the retrospectivity principle, i.e. no man can be tried for a crime that was not a crime when he committed it.  Many war criminals are merely cogs in the machine of a legal regime, which ultimately permits their actions, however unjustifiable morally.  Natural law theories give a basis for challenge on these grounds, whilst avoiding the awkward question of direct legal contravention, which ultimately works to serve justice.  In this sense, it is perhaps useful as a canon of interpretation and in determining just and equitable outcomes in 'difficult' cases.  However, as a wider legal concept, natural law and the proposed intersection between law and morality seems too awkward to reconcile with considered academic legal understandings.  Having said that, natural law has provided an excellent starting position for further advanced argumentation, and has provided a platform for critique that has been essential to the development of the more sophisticated ideas held in regard in this modern day.

Positivist Legal Theory

The question of the character of law is primarily a simple one, although it presents a diversity of argumentation to make it an academic favourite and a thought-provoking topic of debate. Positivism is the term describing the school of legal thought that follows that law is an authoritative, binding, regulatory construct.  It holds at its core the idea that law is enacted as an authoritative statement of how society must behave.  It rejects the concept of any connection with morality, and suggests that there is no room for subjective consideration of the law - the law is, with no room for negotiation.  Positivism has been criticised, particularly in Germany, as a means of affording tyranny and extremism to enter mainstream politics.  It is said that the general concept of accepting and enforcing the law by virtue of its status allows unjust laws enforcing prejudice and discrimination respect by virtue of their enactment, placing an indefeasible trust in the legislature. As compared to other legal theories, positivism has gathered a great deal of respect and support across the world, making it one of the most prominent considerations of the nature of law.

Positivism places strength on the rules as they are laid down, on the premise that the process of the legislature is the time for challenge and interpretation.  Although this may generally be the case, it does throw up some problems in relation to the practical consequences of certain enactments, which reflect better with experience the level of effectiveness.  Another feature of the positivist movement is that rather than be guided by moral considerations, the law can be used in certain circumstances to determine what is right and what is wrong, on the basis of its status as in accordance with or against the law.  Again this causes problems that have formed the basis of much academic argumentation in the area.

One of the main criticisms of positivism as a theory came in light of the linguistic considerations of HLA Hart, a leading international legal philosopher.  He stated that the positive law is far from fixed in nature, for the simple reason that language is not fixed.  For example, the famous scenario offered for this point is a sign in a local park stating 'no vehicles allowed'.  This is by no means a fixed and definitive statement of the law, because 'vehicles' can be taken to mean a broad range of things.  For the most part it will be fairly obvious what falls within the scope - no cars, vans, trucks or trains would be permitted.  But what about skateboards?  Bicycles? Are these covered within the definition of vehicles? There is no way of knowing from the text exactly what is intended by the law, so to positivism in this strict sense is flawed. Rather, a more sophisticated approach is required, which allows the law to be read in the light of pragmatic and policy considerations.  This makes positivism more palatable as a concept, and strengthens its validity at the heart of legal philosophy. 

Positivism is only one in a series of mainstream legal theories which satisfy the rational and logical requirements of academics and practitioners alike.  Its intellectual sophistication sets it apart from the more basic natural law theory, although it is by no means an utterly definitive set of beliefs.  All in all, this is an area of study that is rapidly developing, producing new and more complex arguments with every empirical text.

Natural Law vs. Positivism

The philosophy of law is a complex and in depth study, which requires an intimate knowledge of the legal process in general as well as a philosophical mind.  For centuries, the scope and nature of law has been debated and argued from various view points, and intense intellectual discussion has arisen from the fundamental question of 'what is law'.  In response, several major schools of thought have been born, of which the natural law scholars and positivists are two of the most notable.  These two camps hold strictly contrasting views over the role and function of law in certain circumstances, and have provided in themselves platforms for criticism and debated which continue to be relevant today.

Although the classifications of natural law and positivism are frequently used, it is important to remember that they cover a very wide range of academic opinion.  Even within each camp, there are those veering towards more liberal or more conservative understandings, and there is also naturally a grey area.  Having said that, academics and philosophers can be enveloped by one of the categories on the basis of certain fundamental principles within their writings and opinions. 

Natural law has always been linked to ultra-human considerations, that is to say a spiritual or moral influence determinant of their understandings of the way law operates.  One of the founding principles is that an immoral law can be no law at all, on the basis that a government needs moral authority to be able to legislate.  For this reason, natural law theories have been used to justify anarchy and disorder at ground level.  This had lead to widespread criticism of the natural law principles, which have had to be refined and developed to fit with modern thinking.  On the flip side, natural law has been used as a definitive method of serving 'justice' to war criminals and former-dictators after their reign. 

Some of the strongest criticisms of natural law have come from the positivist camp.  Positivism holds at its centre the belief that law is not affected by morality, but in essence is the source of moral considerations.  Because morality is a subjective concept, positivism suggests that the law is the source of morality, and that no extra-legal considerations should be taken in to account.  Positivism has been criticised for allowing extremism and unjust actions through law.  It has also been suggested that positivism in its strictest sense is flawed because it ignores the depth and breadth of language in legal enactment, which means the positive law can be read in different lights based on differing meanings of the same word. Despite this, positivism has been seen as one of the fundamental legal theories in the development of modern legal philosophy over the last few decades, and is winning widespread favour through a contemporary academic revival.

Natural law and positivism have been the subject of an ongoing academic debate into the nature of law and its role within society.  Both respective legal schools have criticised and built on one and others theories and principles to create a more sophisticated philosophical understanding of the legal construct.  Although the debate is set to continue with a new generation of promising legal theorists, both natural law and positivism have gained widespread respect for their consistency and close analyses of the structure of law.