It common to all humankind and is

It
is indisputable that the first philosophy to emerge was natural law. Natural
law emanated from the times of Plato and Aristotle, who are considered the
philosophers that laid its foundation. It has then evolved over a period of
time- from the Greek schools of thought, to the Stoics, to Christianity, the Medieval
and Renaissance times and lastly, to the Contemporary era. For the past
centuries it has dominated, this period often referred to as the ‘Age of
Reason’, resulted in it being laid as the foundation for numerous legal systems
of the world at that time. However, natural law theory on its own has received
its fair share of critics and in the 17th century, a French
philosopher known as Auguste Comte propounded a modern scientific approach with
an epistemological perspective known as the positivism theory which has
dominated since then. This period was characterized by scientific discoveries
and inventions that further supported the positivist theory, leading to the
natural law theory becoming unpopular. Auguste Comte stated that the only valid
knowledge is knowledge gained through the scientific methods of experimentation
or observation.

            The
natural law theory is the concept of a body of moral principles that is common
to all humankind and is recognizable by human reason alone as propounded by St
Augustine. It is argued that beyond the man-made laws there is a higher law
which are universal and eternal that are waiting discovery by human reason to
which man-made laws must conform to for them to be valid. Various natural law
theorists held two ideas as to what the ‘higher law’ might be; for example,
Aristotle believed that the higher law were the moral codes that every man
ought to emulate and abide by as man has been given intuition to differentiate
right from wrong while others like St Thomas Aquinas believed that the higher
law was law derived from divine revelation from God. It wasn’t until the
doctrine of Christianity that natural law was given a religious perspective.
Despite the theorists holding two separate ideologies as to what the higher law
entails, a common ground held by both was that natural law was eternal.

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            On
the other hand, unlike natural law which was eternal and based on the
metaphysical, positivism was empirical, secular human law that defined law as
it ‘is’ and not as it ‘ought to be’. This theory puts across that law is solely
the creation of man or a sovereign power i.e. government basically, a social
construction. The term positivism, arose from its Latin root, positus which means to posit or firmly
affix the existence of something. The
validity of these laws comes from the enactment of legitimate authority and are
accepted by society as such. A classical positivist Thomas Hobbes, developed
the social contract theory through which a citizen signs away such of their
natural rights to a sovereign for the common good and as are necessary for
their security as well. He argues that law is made by man and not by a divine
being.

            Natural
law proposes that to be valid, laws should derive from certain fundamental
moral premises thus a law that contravenes morality is not valid. Natural law
is closely associated with morality and in historically influential versions,
with the intentions to God. It attempts to identify a moral compass to guide
the law-making power of the state and to promote the ‘good’. Aquinas
distinguished four kinds of law, these were the eternal, natural, human and
divine laws. Eternal law is the decree of God which governs all creation while
natural law is the human ‘participation’ in the eternal law and is discovered
by reason1.  Natural law pushes for law to reflect
morality since the term ‘natural’ doesn’t refer to the law of nature but rather
presents the idea that man, being part of nature, has an intuition that
inclines him towards certain ends such as self-preservation and basic moral
reasoning.

Although
the positivist approach is completely different as it considers law to be
separate and distinct from morality. It contrasts with natural law, holding that
there is no necessary connection between law and morality and that the force of
law comes from some basic social facts although positivists differ on what
those facts are2.
Therefore, according to this theory, no laws should be subscribed to any moral
codes or higher law other than that of the sovereign that made them. This has
resulted in numerous controversies as issues have arose debating on whether law
should be obeyed if it doesn’t conform to any moral values. An example is the
renown Hart v Devlin debate that
resulted from a report generated in the 1950s.  

In
the year 1957, Sir Wolfenden and his committee generated a report known as the
Wolfenden Report that proposed homosexuality and prostitution be disregarded as
criminal offences and instead be legalised with restrictions. His report stated
that it was not the duty of the law to concern itself with morality as
such.  The report argued that the
criminal law was to preserve public order and decency, to protect the citizen
from what is offensive and injurious. Therefore, the law should not intervene
in the private lives of citizens or seek to enforce a particular pattern of
behaviour3.

            However,
this report led to publications from Lord Devlin, a British judge opposing its
demands. He argued this by explaining that law without morality destroys
freedom of conscience and that some form of common morality was necessary to
keep a society together. In addition to that, Devlin said there was a set of
basic principles that should be followed by the legislature. First, the
individuals were allowed the maximum of freedom consistent with the integrity
of the society, and privacy should be respected as much as possible. Secondly,
punishment should be reserved for that which creates disgust among right-minded
people and society has the right to eradicate any practise which is so
abominable that its very presence is an offence. Lastly, the law should set
down a minimum standard of morality4. Devlin believed that the
law needed to reflect the moral values of society for it to attain its
legitimacy. Several people agreed with his arguments as they thought the report
had gone too far, however, an analytical positivist, H. L. A Hart disagreed.
Hart declined Devlin’s arguments by proposing that using law to enforce moral
values was unnecessary, undesirable and morally unacceptable. He agreed with
the report’s proposals that the law indeed should not concern itself with the
private life of its citizen as long as the law was not broken, people could do
as they saw fit.

            Moreover,
in his book The Concept of Law, Hart offered five different positions taken by
legal positivists; (a) The
contention that laws are commands of the sovereign backed by coercive force. (b) The contention that there is no
necessary connection between laws and morals or between law as it is and as it
ought to be, (c) The contention that
the analysis as to the meaning of legal concepts is worth pursuing and is to be
distinguished from historical inquiries into the origins or causes of law and
sociological inquiries into the relationship between law and other social
phenomena, (d) The contention that a
legal system is a closed logical system in which correct legal decisions can be
deduced by logical means from pre-determinate legal rules and lastly, (e) The contention that moral
judgements of law cannot be defended5. Furthermore, it is
evident that Hart believes in the idea of Separation Thesis which asserts that
the condition of legal validity does not depend on the moral merits of the
norms in question. However, this resulted in the Hart v Fuller debate when Hart
published an article on the separation of law and morals which was responded by
Lon Fuller, a contemporary natural law theorist in his book, the Morality of Law.

            Additionally,
opposed to the Separation Thesis ideology, the Overlap Thesis also exists which
supports the natural law theory as well as the idea that concept of law and
morality intersect in some way. Despite the contemporary positivists stating
that law is distinct from morality, Lon Fuller believed otherwise. He did not
support the traditional theory of natural law that linked man-made laws to
divine law, but he sought for laws to conform to moral standards and principles.
In his widely discussed book the Morality
of Law, Fuller argues that all systems of law contain an ‘internal
morality’ that imposes individuals a presumptive obligation of obedience6. He developed principles
of legality that he believes every legal system must conform to, to prevent
tyranny which all laws are supposed to meet, they should be; (1) sufficiently general, (2) publicly promulgated, (3) prospective, (4) at least minimally clear and intelligible, (5) free of contradictions, (6)
relatively constant (7) possible to
obey, and (8) administered in a way
that does not wildly diverge from their obvious or apparent meaning7.
He suggests that these principles guarantee that all law will embody certain
moral standards of respect, fairness, and predictability that constitute
important aspects of the rule of law. Fuller argued that these rules were
fundamental in order to avoid atrocities like the Holocaust from occurring ever
again, as the Nazi regime made laws through legal procedures to harm and kill
several innocent Jews, which despite its legality, was immoral and unjust.

            Natural
Law begins with the premise that all our rights come from God or Nature and are
inherent to our being.  Natural law
birthed the concept of natural/individual rights and this was proposed by John
Locke as well as Finnis as rights that were bestowed to every individual. It is
evident that every individual according to natural law has a moral duty that
takes priority over his/her own personal rights and needs. Finnis sets out his
own theory of natural law, he argues that there are certain ‘basic forms of
human flourishing’ which Aquinas referred to as the basic goods that every
person is inclined to achieve. These basic goods comprised of;
self-preservation/sustaining life, to seek knowledge and shun ignorance,
reproduction, living in societies as man is social in nature, pursue happiness,
seek God or what is morally upright and avoid what is wrong and offensive8. Additionally,
John Locke described natural rights as the right to life, liberty and property
as fundamental and primary. Therefore, it is important to note that natural
rights are entitled to mankind that no sovereign or fellow man should deny.

 

            Whereas
the positive law on the other hand, believes that our rights are granted by the
government hence prescribing what is right or wrong and people are expected to
abide by the prescriptions. It simply argues that any and all laws are nothing
more and nothing less than simply the expression of the will of whatever
authority created them. According to Thomas Hobbes, laws are the rules and
regulations commanded by a sovereign put down in writing with its citizens
being part of the process and such documentations could be the Constitution or statutes
among others. Compared to natural law, positivism is considered written law
thus it can be amended from time to time, unlike natural law which is eternal
and everlasting. Positivism differs in all areas as laws are only applicable to
a geographical and political territory that are controlled by the government of
that specific area. Besides the basic individual rights that have common
grounds in most states, other aspects of law differ. Although natural law is
universal and based on reason and individuals have the free will to chose
between right and wrong hence this theory is commonly categorised as unwritten
law.

            In conclusion, many natural law
theorists believe in natural law as being the backbone of all legal systems. Greek
philosopher, M. T Cicero asserted in his book, the Republica that; True law is the right reason in agreement with
nature. It is of universal application, unchanging and everlasting. It is a sin
to try and alter this law nor is it allowed to attempt to repeal part of it and
is impossible to attempt to abolish it9. However, natural law
began to be rejected because of its idea of a universal natural law common to
all men and the coming of positivism was characterized by secularism and
rationalism. Immanuel Kant, a German philosopher, believed that positive law
was public manifestation of moral law and he argued that morality arises only
from freedom. Natural law also corresponds to basic human drives and needs as
mentioned earlier concerning the basic goods and natural rights. The bone of
contention between these two theories is whether law is linked to morality or
not hence they are independent of each other. However, personally I think that
positivism to some extent contains aspects of natural law in relation to
natural individual rights and that morality does indeed take up a fraction of
law. It is not necessary to attribute laws to a divine being however, morality
is fundamental but only to some extent.

 

1 Louis Pojman and James
Fieser, Ethics; Discovering Right and Wrong (Wadsworth/
Thomson Learning 2002) 129.

2 Phillip Soper, Legal
Positivism. in Robert Audi (ed), Cambridge Dictionary of
Philosophy (Cambridge University Press 1995) 46.

3 Catherine
Elliott and Frances Quinn, English Legal System (10
edn, Pearson Education Limited 2009) 637.

4
Ibid, n3, p 637.

5
HLA
Hart, Concepts of Law (3 edn, Oxford University Press 2012).

6 Lon L fuller, The Morality of Law (Yale
University Press 1969).

7
Ibid n6, p 33-38.

8
JW Harris, Legal
Philosophies (2 edn, Oxford University Press 2011).

9 MT
Cicero, De Republica, iii, xxii, 33.

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