I raised the following idea in class: Does either form of jurisprudence form a grounding in a political system (capitalism, socialism, communism, fascism)?
Now we, living in a capitalistic society, have a system of law which, for the most part, is grounded in traditional natural law. Though is important to note we also have areas of law which are positivist in a sense.
However, say one lives in a fascist, authoritarian country where authority of the state is emphasized. Now in this state of government, laws could, hypothetically, be grounded in some type of traditional natural law. Yet, does it not make more sense that in these types of countries--take the classic Hitler example--that what the leader says goes, a positivist point of view? It seems that in these types of governmental structures the greatest way to ensure public cooperation would be a form of positivist law, not traditional natural law.
It is interesting to see how this has historically, and currently, plays out within countries. I still believe, however, that a well run government, like the one in which we live, must imbue both types of jurisprudence in order to ensure cooperation and freedom for individuals. After all, living under a positivist state of government raises the command theory, which, does leave the individual with much choice. Again, whatever the leader says goes.
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In your last paragraph, are you trying to say that living under the positivist, in your perception, fascist, government does NOT leave the individual with much choice? Based on your phrasing I believe that is what you meant, however I must completely disagree with that idea entirely.
ReplyDeleteI don't believe that whatever the leader says goes. The leader, in our society, which is the president, does not necessarily make the laws. We have systems throughout our government that assist in the making and enforcing of laws. The individual DOES have a choice.
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