Sunday, October 18, 2009

Positivism and Natural Law both necessary

There are aspects of both Positive and Natural Law theories that are important to keep order in our society. Positivism definitley refines and improves upon natural law theories, however the orgins of positivism are dependent upon Natural Law. Natural Law theory, which states that there is some form of a higher law can not be used in every situtation that occurs in today's society. There are many issues that have arisen that have no moral basis that legal positivism makes rulings on. The common examples that we have talked about are the different traffic violations and speed limits. However, legal positivism would not exist or be followed by people if it werent for natural law. Many of the laws that we follow have a moral basis and this influence people to follow them. While positivism creates sanctions for those that do not follow these laws, I believe that many people only follow some laws because of the moral, not legal implications. While people would certainly not want to go to jail for murder, I believe that moral implications keep people from committing this crime more so than the legal sanctions. I believe that legal incorporationists have the most valid view on law theory. the hold that moral prinicpals may be part of the onditions of legality set in the rule of recogition. Without the issue of morality, many people would not follow many laws set by legal positivism. Legal positivism definitley expands upon natural law theory but could not exist without it.

1 comment:

  1. How do you feel about marijuana use as a violation of law. Many people feel that the drug laws surrounding the use of marijuana are not worthy of the enforcement that is undertaken today. Most people feel that there is nothing morally wrong about using drugs, drug use is a victimless crime. People follow the laws because it is inherently moral to follow the law and immoral to not follow them. It is hard to look at it and say that we obey laws that are moral and we act morally because the law dictates. It appears to almost be the same argument of the chicken and the egg, which came first morality or the laws?

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