Naural Law v Legal Positivism PDF

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Sophia Zafiriou s.4589133

To what extent, if any, is morality linked to law? The common questions that are asked whilst exploring this subject of morality linked within law is mainly if morality is the common part of today’s law in society, or how much should it be interpreted within the law? Does moral opinion influence the law or does the law influence moral opinion? Does natural law and legal positivism have anything to do with morality within the law?

Morality is defined as certain codes of conduct put forward by a society or a group; it is also referred to as a code of conduct that has given conditions and would be put forward by all rational persons.1 Morality is rested upon general values, some as good as worth pursing within the law to be followed by society. H. L. AHa r t ’ sConc e pt of La w

H.L.A Hart recognised the separation of law and morality, he claimed that law and moral rules may overlap each other because moral and legal responsibilities may be similar in some situations.2 Hart explained that moral and legal rules may apply in similar codes of conduct such as the responsibility of being honest and truthful to the respect of others, although he explained that moral rules cannot be changed the way that legal rules can be if they don’t work the way they are meant to.3

According to Hart, there is no necessary and logical connection between law and morality and that the existence of the law and legal duties were not made from moral justification. Hart critiqued both legal positivism and natural law, he evaluated the importance of the rules in accordance the legal system. Hart suggested that societies become advanced, more mobile and more diverse.4

1 ‘The Definition of Morality’ Stanford Encyclopedia of Philosophy (WebPage). https://plato.stanford.edu/entries/morality-definition/ 2 ‘H.L.A Hart’s the concept of law’ (WebPage). http://www.angelfire.com/md2/timewarp/hart.html 3 Ibid. 4 Leslie Green, Positivism and the Inseprability of Law and Morals (WebPage). https://s3.amazonaws.com/academia.edu.documents/3247203/ecm_dlv_016295.pdf?response-contentdisposition=inline%3B%20filename%3DPositivism_and_the_Inseparability_of_Law. Signature=ad5deefc87db634080d0193e65ca72792f4accab8824b522df8453f4417eac86

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Sophia Zafiriou s.4589133

Le ga l Pos i t i v i s mv s . Na t ur a l La w

Natural law is explained as the theory of morality. Natural law is the set of truths about morality and justice, and they are the rules that need to be followed in order to lead and have a succeeded life.5 The natural law theory accepts that law can be considered and spoken of both as absolute social facts of power and practise and is a set of reasons for action that can be normative for reasonable people focussed by them, this is where morality within the law comes in.6

Referring to the natural law theory, there is a necessary connection between the law and morality within the law. Natural law holds that laws are made on source-based characters which essentially means that legislation and rules are commonly based on the capacity to maintain human rights and govern the country with integrity. 7 According to Robert N. McLaughlin explained that there is no necessary association between positive law and straight moral obligation.8 Along with the natural law theory, is legal positivism which is a legal philosophy which argues that any and all laws are nothing more or nothing less than what is simply the expression if whatever or whoever created them. Natural law theorists conform to certain moral standards in order to be valid, and determining whats right or wrong. Legal positivism during the twentieth century was accused of advocating a bad perception on the judicial decision making and legal interpretation, although now it is not seen as that.9 John Austin was the founder of the legal positivism theory in 1832 and stated that “the existence of law is one thing; its merit or demerit is another. A law, which actually 5 ‘Legal Positivism vs. Natural Law Theory’ (WebPage). https://web.nmsu.edu/~dscoccia/376web/376lpaust.pdf 6 John Finnis, ‘Natural Law Theories’, The Stanford Encyclopedia of Philosophy (2016). 7 Ibid. 8 Robert N. McLaughlin ‘On a similarity between natural law and theories and English positivism’ The Philosophical Quarterly’ 1989, 39(157). 9 Martin P Golding and William A. Edmmundson, The Black Well Guide to the Philosophy of Law and Legal Theory, (Blackwell Publishing 2005) p, 30.

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exists is a law though we happen to dislike it, or though it varies from the text, by which we regulate our approbation and disapprobation”.10 Positivist theorist have argued that the rationality of the law is one thing and its worth is another whereas natural law is an equation of legal and moral status stating that unjust law is no law at all. This causes confusion whether a rule is moral just because it happens to be treated valid.11 In relation to legal positivism, in order to know what legal rights individuals have, they need reflect on the laws that society has. Positive law is made to be categorised by government authorities and from an organised society.12 Positive sets the standards for acts that are mandatory as well as those that are forbidden and penalties for the destruction of positive law.13 Lon Fuller argued that there is some necessary overlap between legality and justice because it is unreasonable to have a legal system without the rule of law and justice. Fuller admitted that a society can have a legal system that satisfies the demands of justice and morality.14 Fullers contribution to legal philosophy was to offer the most comprehensive analysis of the law, law like characters and morality. He claimed that, that’s what makes law possible.15

I nc l us i v ea ndEx c l us i v epos i t i v i s m

10 Ibid, p, 30-31. 11 Ibid, p, 32. 12 Brian Bix, On the dividing line between Natural Law Theoryand Legal Positivism, Notre Dame L.Rev 1613(2000). 13 Ibid. 14 Legal Positivism vs. Natural Law Theory’ (WebPage). 15 Leslie Green, Positivism and the Inseprability of Law and Morals (WebPage). https://s3.amazonaws.com/academia.edu.documents/3247203/ecm_dlv_016295.pdf?response-contentdisposition=inline%3B%20filename%3DPositivism_and_the_Inseparability_of_Law. Signature=ad5deefc87db634080d0193e65ca72792f4accab8824b522df8453f4417eac86

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Inclusive positivism means that it is possible for a society’s rule of recognition to incorporate moral constraints on the law, whereas exclusive positivism denies that a legal system can incorporate moral constraints on legal validity. Fuller argues that law is subject to an internal morality, he also argued that no system can fully satisfy the community, but it does have an essential purpose to guide behaviour. 16

Mor a l i t ya ndt heLa w

The relationship between morality and the law forms a dominant part of legal philosophy. Although there can be morality without the component of the law in communities without formal legal institutions but based on morals. Laws are there to make an influence on the society, for example sex and discrimination laws.17

Morality is a set of duties and system of social control although morality has left effect on the behaviour of individuals. Morality does operate a check on the individuals’ impulses to commit crimes and go against the law, but it does not make it a reason or excuse to do things out of morality.18 It cannot be argued that to some extent society needs to adopt a specific standard of morality within the community and towards the law. It is clear that some forms of morality cannot be enforced by the law. The acceptance between right and wrong brings out the relationship between morality and law especially when the law is there to keep the peace and good order of the society.19 Each individuals’ morals are diverse, although a society as a whole need to have the equivalent morals because the law needs to be upheld therefore there needs to be a moral value to respect the laws that are put into place throughout the community. Individuals have a duty to uphold morality within their community, human life is better

16 Kenneth E. Himma, Legal Positivism, Internet Encyclopedia of Philosophy (WebPage). https://www.iep.utm.edu/legalpos/ 17 Tony Honore, The Dependence of Morality on Law, Oxford Journal of Legal Studies, (1993) 13(1). 18 Richard A. Posner, the Problematics of Moral and Legal theory, The Belknap of Harvard University Press (1999) p, 3-10. 19 L.C Green, ‘Law and Morality in a changing society’, The University of Toronto Law Journal, 20(4).

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when it is subjected to authority as it is a basis for morality. Although in saying that, laws can be morally made to be wrong. Abortion laws that target women not to do what they want with their bodies at any given time is an example of a morally wrong law. This is just one example of morally wrong laws that have been made and an example of how morality can influence the law bit can also make bad laws whilst doing so.

Furthermore, it can be argued both ways whether or not morality has a link in the law through legal positivism and natural law. These theories have been used to discuss the morality within legal systems. Legal theorists have argued to and for morality within the law and others have also argued to and for but never come to a conclusion. Law is made by both moral and immoral rules, there is no way of telling whether or not morality is linked into the law without exploring the way the two theories that have been discussed thoroughly. Despite the running battle between natural law and positivism there are both pros and cons to both theories of law that cannot out-weigh each other entirely as they co-exist in the same structure.

Bibliography A Articles/Books/Reports Bix Brian, On the dividing line between Natural Law Theoryand Legal Positivism, Notre Dame L.Rev 1613(2000) John Finnis, ‘Natural Law Theories’, The Stanford Encyclopedia of Philosophy (2016). L.C Green, ‘Law and Morality in a changing society’, The University of Toronto Law Journal, 20(4) Kenneth E. Himma, Legal Positivism, Internet Encyclopedia of Philosophy (WebPage). https://www.iep.utm.edu/legalpos/ Martin P Golding and William A. Edmmundson, The Black Well Guide to the Philosophy of Law and Legal Theory, (Blackwell Publishing 2005) p, 30 Richard A. Posner, the Problematics of Moral and Legal theory, The Belknap of Harvard University Press (1999) p, 3-10

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Sophia Zafiriou s.4589133 Robert N. McLaughlin ‘On a similarity between natural law and theories and English positivism’ The Philosophical Quarterly’ 1989, 39(157). Tony Honore, The Dependence of Morality on Law, Oxford Journal of Legal Studies, (1993) 13(1)

B Other Green Leslie, Positivism and the Inseprability of Law and Morals (WebPage) https://s3.amazonaws.com/academia.edu.documents/3247203/ecm_dlv_016295.pdf?responsecontent-disposition=inline%3B%20filename%3DPositivism_and_the_Inseparability_of_Law. Signature=ad5deefc87db634080d0193e65ca72792f4accab8824b522df8453f4417eac86 https://plato.stanford.edu/entries/natural-law-theories/ htt‘H.L.A Hart’s the concept of law’ (WebPage) http://www.angelfire.com/md2/timewarp/hart.html ecm_dlv_016295.pdf?response-content-disposition=inline%3B%20filename %3DPositivism_and_the_Inseparability ps://eds-bLegal Positivism vs. Natural Law Theory’ (WebPage) https://web.nmsu.edu/~dscoccia/376web/376lpaust.pdfhttps://eds-b-ebscohostcom.wallaby.vu.edu.au:4433/eds/pdfviewer/pdfviewer?vid=16&sid=7c67e23c-76f4-44a3-908da69613f2aabc%40pdc-v-sessmgr05 The Definition of Morality’ Stanford Encyclopedia of Philosophy (WebPage) https://plato.stanford.edu/entries/morality-definition/ _of_Law.pdf&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-AmzCredential=AKIAIWOWYYGZ2Y53UL3A%2F20191111%2Fus-east-1%2Fs3%2Faws4_request&X-AmzDate=20191111T081812Z&X-Amz-Expires=3600&X-Amz-SignedHeaders=host&X-AmzSignature=ad5deefc87db634080d0193e65ca72792f4accab8824b522df8453f4417eac86 https://www.iep.utm.edu/legalpos/ eds/pdfviewer/pdfviewer?vid=16&sid=7c67e23c-76f4-44a3-908d-a69613f2aabc%40pdc-vsessmgr05 https://www-jstor=1591410. https://s3.amazonaws.com/academia.edu.documents/3247203/ecm_dlv_016295.pdf?responsecontent-disposition=inline%3B%20filename%3DPositivism_and_the_Inseparability_of_Law.pdf&XAmz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=AKIAIWOWYYGZ2Y53UL3A %2F20191111%2Fus-east-1%2Fs3%2Faws4_request&X-Amz-Date=20191111T081812Z&X-AmzExpires=3600&X-Amz-SignedHeaders=host&X-AmzSignature=ad5deefc87db634080d0193e65ca72792f4accab8824b522df8453f4417eac86 https://www.iep.utm.edu/legalpos/

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