Legal Positivism Essay PDF

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Summary

… the act of “positing” law (whether judicially or legislatively or otherwise) is an act
which can and should be guided by “moral” principles and rules; that those moral norms
are a matter of objective reasonableness, not of whim, convention, or mere “decision”…
- John Finnis, Natu...

Description

Introduction This essay probes the significance of natural law and moral principles, and how it steers acts of positing law as written by John Finnis. It further explores the historical elements of natural law and its relevance to contemporary society with influence from legal positivism. Natural law has also been argued to be impractical if it were standalone, hence the needs to unite with legal positivism for an ideal system. On the other hand, legal positivism is widespread and takes a quantitative and structured approach. Although natural law is a direct way of embodying ethics and morality, there are its limitations and this too will be explored. This essay demonstrates why a hybrid between the schools of thought is optimal.

Steps to implementing laws

“ … is an act which can and should be guided by “moral” principles and rules” this was written by Finnis and is still relevant and logical. Even today the act of positing law judicially or legislatively in Australia is a multi-step process which requires a majority vote in the House of Representatives and Senate and has to be in identical form by both and given Royal Assent by the Governor-General.1 This reinforces the statement by Finnis that moral norms are not simply posited but rather well thought out. This validates Finnis’s statement and shows that implementing laws judicially or legislatively can and should be guided by moral norms. Following legal positivism, any laws posited by a sovereign, however insensible, must be obeyed. This would not be favourable to a vast majority.

Limitations of legal positivism Legal positivism is defined as an approach to legal theory with the separation of law and morality.2 It is concerned purely with what the law is. The essence of natural law has moral truths that have been formulated from facts of human nature.3 Despite legal positivism being the norm in modern society and guiding the implementation of laws, legal positivism is a 1 Parliamentary Education Office, Making a Law Educating Schools, Student and Teachers about Parliament . 2 Nickolas James, Rachel Field, The New Lawyer James Wiley & Sons Australia, Ltd 2012 57. 3 Brian Bix ‘On the Diving Line Between Natural Law Theory and Legal Positivism’ (2000) 75 Notre Dame Law Review 1615 [1].

victim of its own success and for majority of its existence because the fundamental basis of legal positivism has been natural law theory.4 Natural law theory virtually incorporates principles of justice.5 Furthermore, legal positivists have been divided and consumed into two different schools of thought within legal positivism itself and have ignored critical global affairs.6 Positivists also believe that laws are to be obeyed regardless of its basis.7 This has become a serious problem for society’s continual improvement if these schools of thought are perpetually stalemated.

Limitations of natural law

Natural law theory has been simplified by Saint Thomas Aquinas into mediums consisting of two bifurcations of eternal law – divine law and natural law, and its derivative – human law.8 Finnis argues the continual relevance of natural law and this is evident from the practice of it for thousands of years. Early philosophers have inculcated natural law since 3rd century BC.9 Philosophers Aristotle and Zeno have been firm believers of natural law and its rationalism to leading a fulfilling human life.10 Natural law embodies principles of morality hence its appeal to many because of its rationality and its application to people of diverse backgrounds from all eras. Despite how sensible Finnis’s statements are, there are clashes. According to Swiss theologian Karl Barth, natural law hinges excessively on reason which is unscrupulous, untrustworthy and deviated from the revelation of God.11 Furthermore ‘good’ is subjective and is not easily defined or evaluated. Therefore, not all laws can and should be based on moral principles. What is moral to one may differ to another. Fundamentally, moral norms may be similar universally, however when matters get complicated and human nature being

4 Brian Z Tamanaha, ‘The Contemporary Relevance of Legal Positivism’ 2007 32 Australian Journal of Legal Philosophy 2 [3]. 5 James and Field, above n 2, 55. 6Tamahana, above n 4, 2 [3]. 7 Leslie Green, Legal Positivism 3 January 2003 Stanford Encyclopedia of Philosophy . 8 James and Field, above n 2, 57. 9 Ibid. 10 Ibid. 1 1Louis C. Midgley, ‘Karl Barth and Moral Natural Law: The Anatomy of Debate;Note’ [1968] Natural Law Forum 108 [1].

corrupt, who is to decide what is moral. Acknowledging this ambiguity, natural law theorists have formulated means to deciphering a more widely accepted moral code.

Natural law and legal positivism working hand in hand It has been deduced, with regards to positing law, natural law takes precedence. This is after much research on the limitations of natural law and legal positivism. This is in accordance with ideas from Finnis’s book and statement. However, an ideal situation is when aspects of legal positivism are being upheld without interfering or defying divine laws. Legal positivism allows little room for error. This is critical to the precision required in positing and executing laws. This is despite its failure to acknowledge morality which is embedded into humans.12 Furthermore, with morality comes a slew of controversy which may lead to chaos which is why these principles need to work hand in hand for an organised and impartial legal system. This is consistent with the words of philosopher Leslie Green - no philosopher can only be a legal positivist because a wholesome theory of law needs an account of what constitutes as merits of law.13

Conclusion

Despite the vast differences between the schools of thought, it is still commonly deemed that the clash is about the legal or moral validity of partial official actions. 14 Contemporary theorists on both sides also agree that compliance is the best action. 15 In conclusion, lawmakers from opposing sides must cooperate and turn to moral principles to guide them in the law-making process. This would result in just legal systems for the good of society.

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12Green, above n 7, 5 [1]. 13 Ibid 12 [4]. 14 Brix, above n 3, 1624 [2]. 15 Ibid....