Legal Positivism and Natural Law

Unit 2

John Austin

Laws are rules laid down by superiors to guide those under them

Rules are commands that affect specific acts or general acts

Divine-laid down by God for humans (moral obligations)

Positive-laid down by political rulers (legal obligations)

The sovereign does not need to claim it is ruling justly or for the common good of the people

The sovereign doesn’t have any moral obligations

That doesn’t mean that the sovereign or the people are not subject to God’s law

John Austin

H.L.A. Hart

The law has to be understood in terms of rules not commands

There are types of legal rules

Rules exist when people act in a certain way and regard deviations from that way as something to be criticized

Descriptive Social Rules

Persistent patter of social behavior

External aspect; describe patterns of behavior

Normative Social Rules

A group uses rules as guidance and justification of its own behavior. The rules are used in praise of and criticism of others

Internal-provides a norm by which members of the group measure their own actions

Primary Rules

Rules imposing obligations

Secondary Rules

Singles out the rules

Specifies how the rules can be changed

Specifies who can enforce and apply the rules

A person has an obligation when a certain kind of rule applies to him

Social pressure to confirm must exist

The rule must help maintain some aspect of society that is regarded as important and valuable

H.L.A. Hart

Dworkin

Positive law cannot be interpreted and applied without introducing morals and judgment

Morality will influence the way the rules are understood

Laws consist of explicitly adopted rules plus best moral principles that lie behind the rules

Proposed principles and the rules must “fit”

“Fit”

Logical consistency-the underlying principle must be logically consistent with most of the rules

The underlying principle must help to justify or provide rationale for the rules

This theory means judges are allowed to rely on their own moral judgments in deciding cases

Natural Law

Morality enters into the determination of what the law is

In order to be law, norms must be in some way morally acceptable

Lon Fuller

“Inner morality of law”

General systems of law abide by certain moral principles

Law is intended to regulate and control conduct by means of general rules

The rules are directed at humans who are capable of deliberation and choice

The rules must be applied prospectively vs. retrospectively

The rules must be relatively clear in meaning

There is a prima facie obligation to obey the rules of any genuine system of positive law

Lon Fuller

This does not guarantee that every genuine law is a just law

If a law is seriously unjust the prima facie obligation van be extinguished

Lon Fuller

Aquinas

Traditional Natural Law

Natural relationship between religion and morality

The Ultimate source is God

We have an innate ability to understand natural law

We possess a natural sense of what is right and what is wrong

We seek what is good and naturally avoid what is not good or that which is harmful

If a positive law conflicts with principles of natural law these laws are invalid

Aquinas

Human law-positive law

Eternal law-principals of action and motion provided by God to enable each thing to perform its proper function

Natural law-Principles of Eternal law specific to human beings

Divine law-Law the exists over and above Natural law, guiding us to the ultimate goal

Aquinas

Review

Aquinas

Eternal law is universal and applies to all situations

Natural law takes priority over positive law

Natural law imposes obligations on us

Hart

Primary Rules create obligations

Secondary Rules change primary rules

Having an obligation doesn’t mean people are obliged to fulfill it

Fuller

Inner morality of the law

Positive laws are created to further good

Morality requires obeying the law

Austin

Believes the laws are a series of commands

These commands impose obligations on man

There is no link the law and moral obligation

Positive Law

Man made law

Imposes legal obligations on people vs. moral obligations

Legal Positivism

There is no link between positive law and morality

Positive LawMan made laws

Natural Law vs. Positive Law

Natural law is applies universally vs. positive law that applies to people within a given territory

Writing Assignment

Chapter 1 in the textbook describes the views of a number of philosophers concerning the concept and nature of law. An important step in understanding philosophies of law is determining, with respect to any particular philosophy, what law is, how the philosophy conceives of law as a system, and how the philosophies address the commonplaces of law concerning authority and the common good. Choose five philosophers and in 1500 word paper:

Summarize the views of the philosopher relating them to the concept and nature of law. What is law, in this philosopher’s view? How does law function as a system?

Analyze the philosopher’s views, discussing why they are logical or illogical, consistent or inconsistent, persuasive or unpersuasive. Matters that might be relevant to your analysis could include:  the manner in which the philosopher addresses the commonplaces of authority and common good or the philosopher’s attempts to address inadequacies of earlier philosophies.

Criticize the philosopher’s views, explaining why such views are logical or illogical, consistent or inconsistent, and persuasive or unpersuasive. Illustrate your criticisms with examples of situations or “clear cases” that demonstrate the philosophy’s success or failure to satisfactorily account for the concept and nature of law.     

Writing Assignment

Supplement your discussion with material from at least two sources other than the textbook.

In addition to fulfilling the specifics of the assignment, a successful paper must also meet the following criteria: Length of the paper should be at least 1500 words, excluding

cover page and references. Viewpoint and purpose should be clearly established and

sustained. Assignment should follow the conventions of Standard

American English (correct grammar, punctuation, etc.).  Writing should be well ordered, logical and unified, as well as

original and insightful. Your work should display superior content, organization,

style, and mechanics. Appropriate citation style should be followed.

Writing Assignment

When you save your paper you must save your name in the file name for identification purposes.

Example: jclayunit2paper.doc