Weekly Topic 10/13/09

I feel that positivism views law and morality as two separate entities. There is no inherent or necessary connections between law and morality. Law is seen as conceptually separate from moral and ethical values. The positivist argument is solely about the nature of law as a human institution. Hart's formulation of the positivist distinction does reiterate Aquinas's distinction between natural and human law. By distinguishing legal norms from moral norms, Hart is unintentionally reinforcing Aquinas's point. However, positivism and natural law are not similar in their approach to law. Each school of thought has a different end result in mind with regards to the law. Because of natural law's conflation of law and morality into one indistinguishable set of norms, positivism and natural law are fundamentally different. Positivism alters the natural law approach by acknowledging that law and morality are not indistinguishable. This distinction between law and morality seems to be more valid regarding our legal system. While natural law would say that morality is inherent in the law, positivism would say that they are two separate things that happen to randomly coincide. Natural law would assert that morality plays a part in every law, whereas positivism acknowledges that all laws are not morally infused. I would say that positivism does improve the methods of natural law by distinguishing between law and morality. It provides a more modern and accurate approach to law than natural law.

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?