Positivism Law essay - Grade: A- PDF

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Essay exemplar positivism vs naturalism...

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Student ID: 39084160 The Immorality Act 19571 is law. The perspective taken in this essay is that of a positivist, particularly HLA Hart’s definition of positivism. The differences between naturalism and positivism are discussed, as well as the benefits for perceiving law from a positivist perspective over a naturalist view.

Naturalism determines the validity of law based on morality, while positivism seeks to solely define law. They are not opposites as they are trying to reach different conclusions; naturalism evaluates while positivism defines.2 The essay question requires a definition of law rather than an evaluation, so a positivist perspective is required. The Immorality Act was enacted by the South African legislative authority. This qualifies it as law under Hart’s Rule of Recognition. Bentham divided jurisprudence into two branches, expositorial and censorial. Expositorial defines what the law is, and censorial defines what the law ought to be. He states that law must be identified without moral criteria. Only once law has been identified can it be viewed in a censorial aspect, and moral judgement can be made.

Certifying legal validity does not mean that the law ought to be obeyed. Morality and law are closely related, though one does not determine the other. Repugnant law such as the Immorality Act can be considered bad law. It is the right of the people to disobey bad law on the basis of moral value.3 Hart argues that if the authority of the system is accepted, there is no reason why individuals should not examine their own consciences and decide that, although it is law, it ought not be obeyed.4 Naturalists believe that law should be made with morality in mind, rather than deciding moral worth after law has been passed. Naturalists believe that law should comply with a higher moral code, but whose definition of a moral code is to be applied? When asking to define law, a positivist perspective is ideal as it does not involve subjective issues such as moral, political and religious beliefs. This is essential as it allows consistency in the legislative procedure. Naturalism argues that laws should be based on morality. While looking at the Immorality Act from a naturalist perspective now, it would not be legally valid. In 1957, however, many 1

The Immorality Act 1957 (South Africa)

2

Grant Morris Law Alive: The New Zealand Legal System in Context (4th ed, Thomson Reuters, Wellington, 2019) 3

Ibid, at 6.3.2

4

HLA Hart The Concept of Law (Clarendon Press, Oxford, 1961)

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Student ID: 39084160 white South Africans could view this law as morally correct, as it was believed that interracial relationships were wrong. This would mean to a naturalist in 1957, the law could be seen as valid. The problem with taking a morally conservative approach is that the prohibitions on interracial relationship would have been preserved, as such regulations were morally valued by that society.5 So long as there are human beings, there will be bad law. Wicked men will enact wicked law which others will enforce.6 Natural law excludes all possibilities of evil law. To understand the legislative procedure we must confront the possibility of evil law, in order to broaden our scope of knowledge.

To conclude, The Immorality Act is law. When asked to define law, we must take a positivist approach. Once law has been defined, we can then place it under moral scrutiny. Positivism allows a consistency in the law which naturalism lacks; in order to maintain a just and fair society, we must have consistency.

5Jacinta

Ruru, Paul Scott and Duncan Webb The New Zealand Legal System: Structures and Processes (6th ed, LexisNexis, Wellington, 2016) 6

HLA Hart The Concept Of Law

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Student ID: 39084160

Bibliography

Grant Morris Law Alive: The New Zealand Legal System in Context (4th ed, Thomson Reuters, Wellington, 2019)" HLA Hart The Concept Of Law

Jacinta Ruru, Paul Scott and Duncan Webb The New Zealand Legal System: Structures and Processes (6th ed, LexisNexis, Wellington, 2016)

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