Compare And Contrast The Natural And Positive Law

Introduction

Natural law draws its rule from an authority that is not human. It sources is validity and value from divine law, reason or nature. Positive law draws is rules from a human authority. Law is man-made and their validity is subject to the human authority and its prescribed procedure. This essay will deal with the concept of natural law and positive law with the aim of exploring commonality and differences between the two theories.

This essay will discuss views of theorists such as Artistotle and Hans Kelsen to discuss natural law and views of Thomas Aquinas and Hans Kelsen to understand positive law. This essay will determine the core elements of the two laws and attempts to find whether the two laws are on a different, independent footing or whether they have any bridge in between.

This essay will conduct a comparative review between natural and positive law theories by discussing the nature of the theories, their objectives, their enforcement, their fluidity, and the relevance of morality in the theories. It will also discuss the link between the theories by dealing with their ability of realisation and tackling their limitation that leads to a loop of interdependence between the two theories.

Comparative review natural and positive law theories

Nature of the theories. Yves R. Simon (2007) views natural law as being anterior to human law. Accordingly, Russell Hittinger (2007) cites three grounds. They are the order of nature; the moral order and the order of the divine mind. Yannick Imbert (2019) summarised aspects of natural law as be normative in nature based on divine order. Natural law is situational or fact based driven by order of nature. Also, natural law is a moral order that is subjective. Natural law defines the substantive account of ways of how a human can live, which brings humanity to its natural good.

Legal positivism sees natural law theories as being confusing about what law is and ought to be. Accordingly, positive law is a set or system of rules that are promulgated through authorised procedures and are recognised as binding and obeyed by the majority of the public. Thus, positive law is made by human. Aquinas (1988) states that the purpose and function of positive law is to be an ordinance for common good. As it appears, there is a set of differences between the two theories and common link between the theories in terms of the objective, which is common good for the public, they aim to achieve. The next paragraphs will explore the difference and similarity, if any, between the two theories

Objectives of natural law and positive law.

Roger A. Shiner (2010) highlights the difference between natural law and positive law. He states that natural law is the principle and the practical reason in the form of humanity with capacity to seek the objective of living well. He further cited Leslie Green (1987), who termed natural law as “normative functionalism” that presents law as being teleological with the specific aim of achieving valuable ends. However, this explanation of natural law was not received well by Thomas Aquinas (1988). Aquinas stated that this very nature of natural law could make human law a failure and thus is not a good example of what law is. Aquinas debated that positive law, instead, represents the true nature of law that could be determinable and is a proper realisation of natural law.

Enforcement of law.

Aristotle advocated natural law. He based the explaination of natural law on rationalism. Tony Burns (2011) cited Artistotle how he viewed human nature as having a sense of good and bad or just and unjust. According to Aristotle, the purpose of law is to ensure it furthers the goal of a community in bringing happiness. Hans Kelsen (2009) states that the rules of natural law follow from nature, God or reason. There is no force need for their realisation. This is in contrast to positive law. It flows from coercion. The rules flow from arbitrary will of an authority, and thus, does not possess any immediate self-evidence. Human relations are determined by rules of positive law. Hence, conduct regulated by rules of a human authority cannot be regarded as being righteous or just. Human conduct may differ as per the prescribed rules or law. Therefore, coercion forms an integral part of positive law. Based on the source of the laws, it could be observed that rules in natural law are self evidence as they flow from reason, nature or divinity. Rules from positive law flow from a human authority. Its validity depends on this authority and as such cannot be self-evidence. Natural law will see human conduct as being consistent considering the source of the law. Positive law will prescribed varying human conduct as they humans are the one prescribing laws.

Fluidity of law.

Kelsen states that the natural law originated from an absolute value and hence, cannot be changed. It has attained absolute validity and presents a pure, permanent and unchangeable order. Whereas, positive law has a relative validity, which presents an infinitely changeable order. The flexibility allows it to adapt to changing circumstance and time.

Extent of morality.

The comparison between natural law and positive law cannot be complete without referring to HLA Hart and Lon L. Fuller. Hart (2012) stated that laws are commands of humans and it does not have any link with morality. Legal system is a closed system where decisions are made based on legal rules and means. Any study of legal concepts is to be conducted without referring to social and moral aims and function. Hart further states that moral judgments cannot be established with use of rational argument and proof. Laws, as such, may not satisfy demands of morality. On the other end of the debate, Fuller states natural law signifies multiple, different, and unrelated dimensions of the normative reality. Natural law is more adequate to portray structure of legal reality. Fuller (1958) states that there is no merger between law and law ought to be. He presented the theory on internal morality of law, which focuses on eight principles: ‘generality, publicity, non-retroactivity, clarity or intelligibility, non-contradiction, possibility of compliance, constancy through time, and congruence between declared rule and official action’. This contrasts what Hart holds about the separation of law and morality. Joseph Mendola (1999) states that a legal right may not necessarily demand having a moral right. Legal rights are determined by a legal system and moral rights by understanding true morality.

Link between the two theories

There is a clear difference in the outlook, which indicates that the two theories are viewed and understood differently, but are also linked. This represents an overlap between them in respect to the aim of achieving good to the public. They differ in their approach. Natural law represents a wide umbrella of guidance to achieve the aims of the law in helping humanity attain its natural good. Positive law gives a structure made by human in determining the desired structured objectives. In that sense, Shiner (2010) states that natural law is beyond law that is understood as a particular human institution. Accordingly, it highlights the position of human institutions in related to natural law. Aquinas (1988) also viewed positive law as being a proper realisation of natural law. This outlook indicates that positive law helps achieve what natural law aims. Alternatively, it also highlights the failure of natural law of its approach in achieving its aim. The link between natural law and positive law could be gauged from the question concerning the ability of natural law to realise itself in respect to real life conditions. How will natural law determine relationship between two persons in a dispute. If based on reason, it is supposed to be assumed that the parties apply logic to the facts of the case. This also means they individually determined what is right and wrong, or just and unjust, and the consequences of the facts. This also means they have to create individuals norms that conform to general norm. This would mean creating special organs above the norms of the individuals to settle the issue. Thus, when it comes to realisation of natural law, it leads to forming man-made norm, which is a positive norm. This is a characteristic of positive law where the rules draw their source from human authority. Here lies the link between the two laws. Explaining the link from limitation of positive law, positive law is not valid unless prescribed by a basic norm, which again is based on a hypothetical presupposed norm. A law created without following the prescribed procedure and authority cannot be considered valid. The lawmaker as such makes positive norms to regulate authorities and their procedure and he/she determines the content of those rules and procedures. So, there cannot be any individual norms created beyond general norms. Any norm cannot be valid unless created within the prescribed rules and the designated authority. Understanding how the law works or is created, it could be observed that there must be a definite authority to make the laws. However, source of validity of such authority and the laws it makes is based on basic norms. As stated, the source of positive law is a hypothetical one. So, the question is on what basis is the hypothetical presupposed norm. This leans towards the basic understanding of the source of natural law that gives its absolute validity.

Self-reflection paragraph

Writing this essay help me brought clarity in the way I think and approach the topic or more important a topic in general. While I read the topic, I could understand the meaning and the basic differences of the topic. However, the challenge is to convert those understanding in a written form, which is this essay, conforming to the standard writing style and rules. This essay helps me foremost in this regard. The important benefit of writing this essay is acquiring knowledge in a structured format. It will help me in an analytical understanding of the specific topic. This essay helped me go to the core of the theories and build up the argument in a progressive manner. It helped me perceive law and theories in from a new angle. For example, at the later part of the essay, understanding the differences and the link between them, I could surely state my opinion that positive law gives structure to the law in terms of making and enforcing law through an established system and procedures. The concluding observation is that such system forms the validating authority of law without with the law cannot be enforced. Another view that I have developed is that the natural law and positive law complement each other. While positive law gives structure, natural law acts as the source of law and validates law. The reason being that natural law draws its source on reason, which, I can state, takes the form of basic norm upon which the positive law is based. I may be wrong here, but I find this very logical. Continue your journey with our comprehensive guide to Trust Law.

Conclusion

This essay dealt with the core characteristics of natural law and positive law and revisited the debated between the two theories. It would not be wrong to state that the two laws are different in that regard. The former is based on the orders of nature; morality, and divine source. The latter is based on institutional authority. The former, based on the three orders, seeks valuable ends and sees law as an end in itself. The latter sees law as a system that could be determinable and realisable. Based on this reasoning, even the enforceability of law differs where the former is treated as self evidence requiring no authority to make it enforceable unlike positive law that requires an authority to validate and enforce it. This essay has, however, concluded that the difference is a means to an end. This stems particularly from the realisation and validation of the law. They are different but not entirely independent that they could survive on their own. Natural law could be the main source of law as its rules as well as the basic norm of positive law seem to draws their rule from reason. To conclude, they are on the same path towards achieving public good, but are placed at different stages or levels.

Bibliography

Berrisford K and Riley Quinn, Analysis of Aristotle's Politics (Macat International Ltd. 2017).

Burns T, Aristotle and Natural Law (Bloomsbury 2011).

Dyzenhaus D, Sophia Reibetanz Moreau and Arthur Ripstein, Law and morality: readings in legal philosophy (University of Toronto Press 2007).

Hittinger R, The First Grace: Rediscovering the Natural Law in a Post-Christian World (ISI Books 2007).

Hart HLA, The Concept of Law (Oxford: Oxford University Press 2012). Kelsen H, General Theory of Law and State (The Lawbook Exchange, Ltd. 2009).

Simon YRM, The Tradition of Natural Law: A Philosopher’s Reflections (Fordham University Press 1994). Shiner RA, ‘Law and its Normatvity’ in Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell 2010). Smith P, ‘Feminist Jurisprudence’ in Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell 2010).

Journals

Fuller LL, ‘Positivism and fidelity to law: A reply to Professor Hart’ (1958) Harvard law review 630-672.

Imbert Y, ‘Natural Law and imagination’ in Jonathan Crowe and Constance Youngwon Lee (eds.), Research Handbook on Natural Law Theory (Edward Elgar 2019) 279-280.

Mendola J, ‘Hart, Fuller, Dworkin, and Fragile Norms.’(1999) 52 SMUL Rev. 111.

Sturm D, ‘Lon Fuller's Multidimensional Natural Law Theory.’ (1965) 18 Stan. L. Rev. 612.