Tuesday, October 13, 2009

Weekly Topic: Positivism and Natural Law

Throughout his essay, "Positivism and the Separation of Law and Morals," H. L. A. Hart strains to show that theories of natural law undercut moral criticism of legal rules and institutions by conflating law and morality into one indistinguishable set of rules and norms. To avoid this confusion and preserve the value of moral criticisms of law, positivism distinguishes between legal norms and moral norms.

Yet, it might seem that Hart's formulation of the positivist distinction, especially since it is designed to legitimate criticism of the law on moral grounds, simply reiterates Aquinas's distinction between natural law and human law. After all, isn't it the link between natural law and human law that serves as the basis for moral criticism of the law?

In short, I would like to hear how you understand the distinction between law and morality, specifically as it applies to positivism, but also in what respect it alters, misunderstands or corrects aspects of natural law theory. Are positivism and natural law ultimately up to the same thing? If so, does positivism significantly refine or improve the methods of natural law? If positivism and natural law have different goals, what are their respective aims and why should we prefer one over the other?

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