It is pretty obvious to me how one can distinguish between law and morality. Law to me is something that is to be followed, an action or a prohibition of an action to make it clear as to how the written law expects us to react. When we look at laws especially through the positivists, we see that what actually occurs is that we are aware of the laws and they prescribe what we should be doing within the law. It is hard to believe that we can bring anything in morality into this issue when we are specifically focusing on the law. Morality on the other hand is what others expect you to do. While this sounds somewhat oversimplified, it is more complex on second look. When one is expected to do something as a member of society, others express their moral expectations on these individuals. There is no law that is expressing the norms of the individuals that are being displayed. This leads us to conclude that positivists and natural law believers are not up to the same ideas. Natural law theorists propose that law is transcribed from this higher being that in turn implies morality. On the other hand, it is true that the positivist is one who looks at what the law is and simply realizes that it is written down as law so it must be law. The reason to follow the law is that it is law and is written down. Its obvious that this thought process does not try to pull morality into the issue and simply attempts to view law as something that must be followed.
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I think what you misunderstand about the natural law theorists' position is that when laws "prescribe what we should be doing within the law" it should be in accordance with morality. In addition, natural law theorists do not necessarily think that it is a "higher being" determining the law. Instead, some natural law theorists point to essential (or natural as the name suggests) obligations which are common to all humans and this is and should be the foundation of positive law. However, incorporationist positivists do not completely disallow the introduction of morality into laws and thus there is a somewhat blurred distinction between this school of thought and that of the natural law theorists.
ReplyDeleteI also agree with Andrew. Natural Law theory and positivism can not be separated so easily. As he pointed out, incorporationist positivists do not elliminate the ideals of morality from they way they view laws. Also, natural law does not entirely suggest that all laws come form a "higher being". They come from traditional human nature and are intended to aid in advancing a common good for all people. To completley separate legal positivism from this so easily is a gross oversimplification of the facts. While legal positivism argues that laws should be followed becuase they are law and are written down, many of these laws were created with moral issues in mind and are based on morality to a certain extent regardless of whether or not this is the reason they are to be followed.
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