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NATURAL LAW AND POSITIVE LAW
The relationship between law and morality is one of the thorniest problems in political theory. Philosophers have long been taxed by questions related to the nature of law, its origins and purpose.
Does law, for instance, merely give effect to a set of higher moral principles, or is there a clear distinction between law and morality?
How far does, or should, the law of the community seek to enforce standards of ethical behaviour?
Such questions go to the heart of the distinction between two contrasting theories of law: natural law and positive law.
On the surface, law and morality are very different things. Law refers to a distinctive form of social control backed up by the means of enforcement; it therefore defines what can and what cannot be done.
Morality, on the other hand, is concerned with ethical questions and the difference
between ‘right’ and ‘wrong’; it thus prescribes what should and what should not be done. In one important respect, however, law is an easier concept to grasp than morality. Law can be understood as a social fact, it has an objective character that can be studied and analysed.
In contrast, morality is by its very nature a subjective entity, a matter of opinion or
personal judgement. For this reason, it is often unclear what the term ‘morality’ refers to.
Are morals simply the customs and conventions which reign within a particular community, its mores?
Need morality be based upon clearly defined and well-established principles, rational or religious, which sanction certain forms of behaviour while condemning others?
Are moral ideals those that each individual is entitled to impose on himself or herself; is morality, in short, of concern only to the individual?
Those thinkers who insist that law is, or should be, rooted in a moral system subscribe to some kind of theory of ‘natural law’. Theories of natural law date back to Plato and Aristotle.
Plato believed that behind the ever-changing forms of social and political life lay unchanging archetypal forms, the Ideas, of which only an enlightened elite,
the philosopher-kings, had knowledge. A ‘just’ society was therefore one in which human laws conformed as far as possible to this transcendental wisdom.
This line of thought was continued by Aristotle, who believed that the purpose of law and organized social life was to encourage humankind to live in accordance with virtue. In his view, there was a perfect law, fixed for all time, which would provide the basis for citizenship and all other forms of social behaviour.
Medieval thinkers such as Thomas Aquinas also took it for granted that human laws had a moral basis. Natural law, he argued, could be penetrated through our God-given natural reason and guides us towards the attainment of the good life on earth.
The demands of natural law came to be expressed through the idea of natural rights. Natural rights were thought to have been invested in humankind either by God or by nature.
Thinkers such as John Locke and Thomas Jefferson proposed that the purpose of human-made law was to protect these God-given and inalienable rights.
However, the rise of rationalism and scientific thought served by the nineteenth century to make natural law theories distinctly unfashionable. Nevertheless, the
twentieth century has witnessed a revival of such ideas, precipitated, in part, by the cloak of legality behind which Nazi and Stalinist terror took place.
The desire to establish a higher set of moral values against which national law could be judged was, for example, one of the problems which the Nuremberg Trials (1945–6) had to address. Under the auspices of the newly created United Nations, major Nazi figures were prosecuted for war crimes, even though in many cases they had acted legally in the eyes of the Nazi regime itself.
This was made possible by reference to the notion of natural law, albeit dressed up in the modern language of human rights.
Indeed, it is now widely accepted that both national and international law should conform to the higher moral principles set out in the doctrine of human rights.
The central theme of all conceptions of natural law is the idea that law should conform to some prior moral standards, that the purpose of law is to enforce morality. This notion, however, came under attack in the nineteenth century from what John Osbourne called ‘the science of
positive law’. The idea of positive law sought to free the understanding of law from moral, religious and mystical assumptions. Many have seen its roots in Thomas Hobbes’s command theory of law: ‘law is the word of him that by right hath command over others’. In effect, law is
nothing more than the will of the sovereign.
By the nineteenth century, John Austin (1790–1859) had developed this into the theory of ‘legal positivism’, which saw the defining feature of law not as its conformity to higher moral or religious principles, but in the fact that it is established and
enforced by a political superior, a ‘sovereign person or body’. This boils
down to the belief that law is law because it is obeyed. One of its implications is, for instance, that the notion of international law is highly questionable. If the treaties and UN resolutions that constitute what is called ‘international law’ cannot be enforced, they should be regarded as a
collection of moral principles and ideals, and not a law.
A modern attempt to refine legal positivism was undertaken in H.L.A. Hart’s The Concept of Law (1961). Hart was concerned to explain law not in terms of moral principles but by reference to its purpose within human society. Law, he
suggested, stems from the ‘union of primary and secondary rules’, each of
which serves a particular function. The role of primary rules is to regulate social behaviour; these can be thought of as the ‘content’ of the legal system, for instance, criminal law.
Secondary rules, on the other hand, are
rules which confer powers upon the institutions of government; they lay down how primary rules are made, enforced and adjudicated, and so determine their validity.
While natural-law theories are criticized as being hopelessly philosophical, positive-law theories threaten to divorce law entirely from morality.
The most extreme case of this was Hobbes, who insisted that citizens had an obligation to obey all laws, however oppressive, since to do otherwise would risk a descent into the chaos of the state of nature. However, other legal positivists allow that law can, and should, be subject to moral scrutiny, and perhaps that it should be changed if it is morally faulty.
Their position, however, is simply that moral questions do not affect whether law is law. In other words, whereas natural law theorists seek to run together the issues ‘what the law is’ and ‘what the law ought to be’, legal positivists treat these matters as strictly separate. An alternative view of law, however, emerged in the early part of the century, associated with the ideas of the famous American jurist, Oliver Wendell Holmes (1809–94).
This is legal realism, the theory that it is really judges who make law because it is they who decide how cases are to be resolved. In this sense, all laws can be thought to be judge-made. However, as judges are, in the vast majority of cases, non-elected, this view has disturbing implications for the prospect of democratic government.