Natural Law and Legal Positivism

Natural righteousness and Legal PositivismIn entrap to answer this question one must assess and consider the concepts of innate(p) honor and legal positivism. It is also important to define rigor and consequently part. equally the police force needs to be seen as being valid as it adds purpose and legitimacy to the law and the legal system itself, this in turn helps to rig the notion of esteem.According to the thesis of natural law, the only way to evaluate the law is by write to devotion and ethnics. The thesis of natural law makes reference to different types of law. These consist of eternal law, divine law and natural law, all of which contain reference to God and pietism. This premise upon the existence of human law. The higher principles of natural law argon deemed to be certain and consequently valid as they are believed to be linked to truth and justice. Morality is therefore seen as a replete(p) tool to measure validity under the natural law thesis because it provides an external aid for evaluation and it allows the goodness of the law to be measured. It is abstemious that good law are real laws and therefore require obedience. This includes the former of the intervention of a sanction.This scheme lot be distinguished by the instill of thought known as legal positivism. This hypothesis is utilize to describe what the law actually is and premises on the idea that the higher principles determine in the natural law thesis can not be proved in reality and thus positivism looks to the human law, which by the definition of natural law could not contain validity without reference to the higher principles. Legal positivism removes the idea of morality1 from the precise structure. Positivism is based on the concepts of rules, created by a figure in authority and containing the imposition of sanctions if the law is broken. However, the structure is held together and measured against the concept of morality, obedience and power. This in tu rn provides validity by means of the function of the concepts of rules, authority and sanctions. All of which can be objectively measured.In terms of the classical approach to positivism, Jeremy Bentham criticised the assumptions made by the thesis of natural law and identified the is/ought debate in order to introduce the legal is to the moral ought. Bentham tried to create a scientific approach to the subject of law. He stated that morality and ethnics should be decided by the censor2 whilst the action of defining the law was left to the expositor3. Bentham attempted to show through his theory of law that the structure was based upon a series of commands. Bentham believed that a command is an expression of an intention or wish4 regarding the conduct of other individuals5. Bentham attempted to separate morality from the law, without actually discarding morality per se. preferably Bentham says that morality plays no role in the definition of law. It is clear that the application of a scientific approach to law derives from the concept of power to impose sanctions as a matter of right. This in turn validities the structure of positivism.Benthams theory can be distinguished by his disciple, John Austin. Austin premised his theory on Benthams command theory. It is clear that Austins theory is more refined as he separates different types of commands within the structure. According to his range The Province of Jurisprudence Determined Austin stated that his commands theory originated from a sovereign figure. He said Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds by monarchs, or sovereign bodies, as supreme political superiors by men in a state of subjection, as subordinate political superiors by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign member.to a person or persons in a state of subjection to its author6. Thus, the sovereign figure is an identifiable person that is valid through the legitimate use of upshot and power under the object of authority. Austin uses this notion to show how laws emanate from the identifiable individual to produce validity and in effect authority and power.In Austins command theory the question of why do commonwealth pursue the law is posed. Austin decided that the reason people obey the law is due to the habitual role to comply from the sovereign. This is due to the perceived threat of the imposition of a sanction through the power afforded from the right of the law. Equally, check to W. D Ross in his works The Right and the Good, Ross identified the reason why people obey due to the fact that its laws are potent instruments for the popular good7. This indicates that the law is a power based subject and as such the threat of a sanction is based upon the notion of power. This is similar to the theory of doubting T homas Aquinas who believed that the ultimate goal of law is to preserve peace. This again, is arguably a power based subject that is structured on the concept of means and ends.These theories can be distinguished by the works of John Rawls who in 1971 scripted a Theory of Justice which identified a moral duty for people to obey law. This moral obligation by its nature implies a certain degree of coercion. This coercion by nature is a power that the law relies upon to compel a sanction. However, according to Herbert L. A Hart who argued that when a number of persons conduct any joint enterprise according to rules and restrict liberty, those who progress to submitted to these restrictions when required have a right to a similar submission from those who have been benefited by their submission. Thus Hart identifies obedience as an internal and external source, his furiousness in his principle of fair play that there are both private and official concepts of obedience. This by its im position inserts power as the primary sort of legal authority. However, Hart criticised the imposition of forced compliance as it is an unacceptable form of compliance. According to Hart, the positivist theory requires the free choice of an individual to comply. However, obedience as a matter of course is a power orientated tool. Obedience is a tool by which the law can be judged as valid, however the fear of an imposed sanction is by its nature power based.In terms of modern positivist thought, Hans Kelsen indicated that law is based upon a raise of averages. He stated in his works The Pure Theory of Law8 that all norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order- it is their reason of validity. These norms are structured upon a hierarchy of components, which are small and specific in content at the bottom. These rai se up in general application to become basic components. These only exist due to the validity of the grundnorm. This is the norm that occupies the apex of the hierarchy and validities the lower norms. This form of validity premises, due to its nature, on the legitimate use of force and thus power in the concept of authority. Again, this use of power is unjustifiable by Hart.According to Hart, in his main work, The Concept of Law, he criticised aspects of Austins command thesis, namely the idea that the sovereign figure being identifiable, the idea that the law is a series of commands and the emphasis on the internal and external concepts. In Harts theory two distinctive types of rules, the primary rules, which limit or expand the liberty of an individual, and the secondary rules, which touch themselves with explaining the other rules. These secondary rules can be divided into the power to create legislation, secondly, the power to create adjudication, and finally the rule of recogn ition, which by definition is not power based, rather it is a set of conditions that a norm must follow in order to be valid.This theory of law was subsequently criticised by Ronald Dworkin. Dworkin preferred to look at law as a function of a social convention and in effect a contract based on a system of rules and non-rule standards. Thus, when a court has a hard case to rule upon they use both political and moral principles to interpret and apply the law, thus Dworkin argued that a separate ethos of law and morality cannot in reality exist. Thus, a social convention by nature is based upon the imposition of power through the perceived threat of a sanction. Dworkin used the social convention to demonstrate a rule of compliance through the imposition of power and authority in the law.In conclusion, the nature of the differing schools of thought within jurisprudence are centralised around the concept of power. In natural law this premised upon the idea of God and morality through th e nature and justifications of the existence of God and morality, and the effect of being judged by these institutions. In legal positivism the application of power is through the structure of law being delivered through an authoritative figure and containing sanctions if the enacted law is broken. The concept of power is therefore centralised in both schools of thought. Power is the main basis that validities the law and is the main working purpose of the law. However, in both schools of thought power is defined slightly differently and arguable is camouflaged by the terms of the good of natural law and the basic norm. The rule of recognition, although not a power orientated component, it is most certainly in existence due to the concept of power imposed by the other rules and regulations.Footnotes1 Morality in itself cannot be measured. Legal positivism asks why a tool that is imprecise and abstract should be used to measure something that should be precise.2 Ought3 Is4 Known as a volition.5 What a Law is, UC 1xix, 70-71 OLG 1.6 The Province of Jurisprudence Determined.7 Circa 1930, page 27.8 Kelsen believed that The pure theory of law is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question, what is law? But not the question, what ought it to be? It is a science and not a politics of law. Pure Theory of Law (1934-1935) from volumes 50-51 LQR.