Tuesday, October 13, 2009

Positivism, Natural Law and Morality

Legal positivism helps solidify the distinction between law and morality by stating that there is no inherent or necessary connection between the validity conditions of law and morality. It further states that rules are made, whether deliberately or unintentionally, by human beings. In that case all human beings naturally also adhere to some code of morals or ethics, whether intentionally or not. In the view of positivism, the law is seen as being conceptually different but not separated from morals. The law is a purely human institution while morals can be linked to a higher power. Positivism and natural law are ultimately up to the same thing and positivism helps to improve the methods of natural law. This is particularly the case because it is difficult to relate ethics to natural law and positivism helps to reinforce that separation and distinguish the differences between the two. The main difference is that a law can be unjust without it being any less of a law in the eyes of positivists, while those adhering to the theory of natural law would argue that there is indeed something legally deficient about an unjust law. In natural law there is an inherent connection to morals, because this theory claims that just laws are imminent in nature and are not created. Since these just laws come naturally to man, they are obviously grounded in some sort of ethics and morals. For instance, a law concerning killing or stealing is bound to have some moral basis.

3 comments:

  1. I absolutely agree with the authors comment, I am just curious if one can actually believe that there were no laws that were created by man that were just. I understand that what natural law theorists believe that there is no law that is just that is not imminent in nature. I happen to think that when we look at what happens in nature there is a lot of justice. The predator becomes the prey and all that stuff. I am interested to see if men can create such just laws. Look for example a law against money laundering. Is money laundering something that humans have created rather just laws against. I find it hard to locate a law in nature that is just as this law and does not interact with common human interaction such as murder, assault, theft, etc

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  2. I am not sure that it is that natural law theorists believe that there is no just law that doesn't naturally occur or can be derived from what happens in nature, but I think that they believe that the human laws have to reflect and be based around what happens in nature, not just direct transformations of nature's laws on humanity.

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  3. A prime example of a law that is a law, even though it is unjust is Proposition 8 and other laws that consider homosexual couples inferior to heterosexual couples. People are actively protesting this law. There is a community of people being treating unfairly and yet Proposition 8 is still a valid, written law. The authors and supporters of this law claim that it is a Natural Law that is heavily based in morality even though a group of people are being denied their civil rights.

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