Natural Laws and Legal Positivism Theories - Essay Example

Natural Laws and Legal Positivism Theories Natural Laws and Legal Positivism Theories Different theories and concepts as well as critics on the laws have for ages argued on elements that makes a law legitimate, and for the legitimate laws, what could be their legitimates sources. Other concerns of these contributions are what binds people to be obedient to such laws and what are the essential connection between morality and laws. All these concerns have ever been argued with different personalities under different broad theories: the natural laws theory and the legal Positivist theory (Pattaro, 2007; Pg. 271; Keown and George, 2013; Pg. 144). The main natural law theorists include Aristotle, St. Thomas Aquinas, and Plato. These theorists argue that any law can only be legitimate and just if such laws promote common good. However, on the other side, the Legal Positivists including H.L.A. Hart, John Austin, and Thomas Hobbes, argue that legitimate laws are those that have been enacted through effective and proper channels with persons with powers to so despite the content of such laws (Curran, 2006; Pg. 611). Despite the contributions of these theorists and their critics, it is worth noting that each contributor seeks to determine and answer the vital concern about the relationship between law and the society. St. Thomas Aquinas among other adherents to natural law theory state that there is a divine relationship between natural law and morality has given by God. Aquinas believed that natural law resulted from grand concept of God for the universe (George, 1996; Pg. 138); therefore, the natural laws must be translated into legal moral frameworks defining a moral code that benefit the life mankind and the society around him (Merkle, 2010; Pg. 201; Hutton, 2009; Pg. 182). He further stated that, in cases where this divine code comes in conflict with laws made by man, then Natural Laws of God naturally take precedence. He noted that natural laws were designed mainly to promote the common good and acts as check and balances on manmade corruptions; therefore, he added, laws that never support common good are automatically bad laws. St. Augustine of Hippo echoed Aquinas’ sentiment by noting that “an unjust law is no law at all (Pottenger, 2007; Pg. 175).” Aquinas also noted that natural laws are human laws that driven form God’s divine practical reasons and laws. Notably, this concept was supported by both Plato and Aristotle who agree that the law and justice concepts originate from reason and law that usually govern actions towards higher good (Charles, 2008; Pg. 89). Therefore, Aquinas distinctively noted that; therefore, people who are responsible to making laws must do so with the aim of caring for the community. On the similar account, Hobbes believes that it is the responsibility of law makers to care and protect the society that the laws they initiate intend to govern (Hamm, 1995; Pg. 317; Charles, 2008; Pg. 51). However, Hobbes seems to be a cross road on the topic concerning the sources of the law. He noted that an individual can work on his own sovereign mind to create and enforce laws as long as they are contracted by the society and the people (Cherry, 2004; Pg. 87). Moreover, Hart differ with Austin and notes that sovereign cannot just make laws as they please (Legg, 2012; Pg. 151). Despite the sovereignty of the sources of laws, such sources must follow certain primary and secondary rules. Other than the critics of the Natural laws, the Legal Positivism totally opposes the contributions of the natural laws in defining the connection between laws and the society. The Positivists do not believe in any connection between morality and ethics in relations to the formation of laws (Churchich, 1994; Pg. 169). They loudly state that the judicial system and the laws are only made by man for man; therefore, developing conventions and customs into legal codes that are quantifiable. Notably, the legal positivism never seeks to endorse or justify any particular legal system (Miller, 2001; Pg. 408); however, it seeks to distinct concepts of manmade legal institutions to be neither good nor bad in relation to ethics and morality (Scarnecchia, 2010; Pg. 281). In other words, the legal positivism regards legal systems as social constructs. Jeremy Bentham an English philosopher, who lived between 1748 and 1832, championed legal positivism thinking and at one time described natural laws as “nonsense upon stilts (Witte, 2007; Pg. 349).” John Austin (1790-1859) modified Bentham’s ideas and greed on the principal laws sophisticated societies that are dominated by figures including parliaments or sovereign with absolute powers over the rest of the members of the society are usually mandated to impose legislation through sanctions or threat of force to the rest of the society (Conklin, 2001; Pg. 58). In other words, Austin noted that persons empowering these sovereigns and parliaments usually appear as being not part of the same rules formulated by the same people they have empowered to create and enact such laws (Bucar, 2005; Pg. 715). It can be noted that the main difference between Natural laws and the legal positivism approach is that the legal positivism approach recognizes the chain of command and compliance as applied in the application of laws within the society (Frankel, Miller, and Paul, 2000; Pg. 452). In this case, the command is usually by the sovereign while compliance is to the masses. The sovereigns are usually put in place by masses; however, they never seek compliance from the masses by first securing moral legitimate authority from the masses (Graham, 2002; Pg. 301). In other words, as the Natural laws advocate for good laws for common good for the society, legal positivism notes that it is imperative for the sovereigns to make bad or good laws since the subjects to the laws will ever comply since the sanction threats is usually in the form of punishment that scares people (Forte, 1998; Pg. 129). Nonetheless, like any other theory, these two theories can be appropriated and interpreted in so many different ways depending on the interest of the interpreter (Ferrer et al., 2013; pg. 173). For instance, Nazi had legal system that was known through history to unjust; however, the legal positivist could recognize the dictatorial nature of Nazi regime since the regime considered itself legally valid; thus, vindicated (Kelsen, 1978; Pg. 813). On the other hand, the natural law theory could have considered the Nazi regime and its policies unjust. However, it associated with natural section and considered itself as forward motion of God. There are many cases in history than can be used to analyze the application of different concepts of natural laws and legal positivism theories. For instance, the1960’s Hart vs. Devlin can be used to justify and or condemn certain behavior (Traina, 1999; Pg. 287; Stone, 1965; Pg. 162). In the year 1954, Sir David Maxwell Fyfe commissioned the ‘Report of the Departmental Committee on Homosexual Offences and Prostitution’ (Patterson, 2010; Pg. 482). This report was commissioned after a series of conviction of homosexual and prostitute celebrities including Peter Wildeblood, Lord Montagu, and Michael Pitt-Rivers who were tried on different counts of homosexual offenses (Taekema, 2003; Pg. 291). By then, this was a very serious sexual offense in Britain and could attract a fine of up to 5 pounds. The report that was published on September 4, 1957 had evidence from parties including the police, religious bodies, probation officers, health experts, and homosexuals whose lives had been affected severely by the legislation (Rich, 2001; Pg. 507). This report was requested by the government since it wanted to check if the sexual offense laws needed to be revised since it felt it was somewhat outdated. After three years, the government analyzed the report and determined that the sexual related laws were to be revised to have a more liberal approach. It stated that was against civil liberties to criminalize homosexuals and further noted that the law was not fair since it only targeted men (Himma and Peczenik, 2004; Pg. 203). In a more liberal way, it worth noting that mature democracies to a larger extend hold on the rule of natural laws that seeks and generates laws with public interest or for the common good. However, states or sovereigns that are defined by pure dictatorship are the ones that seem to embrace legal positivism in creating and legislating laws. Therefore, in the same spirit of maturity in the democracy that Britain in the 1960’s seeking the opinion of the masses in adjusting its sexual laws. Notably, the law was revised with aim of respecting "individual freedom of actions in matters of private morality (Stone, 1965; Pg. 412)." References BUCAR, E. M. (2005). 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