Natural Law and Positive Law - Essay Example

'Law is the command of a sovereign backed by a sanction'. Is this still a useful definition of law This paper outlines its potentials and possible shortcomings. When English jurist John Austin said 'Law is the command of a sovereign backed by a sanction', he essentially implied that law was a creation of an authority whose legal policies were supported by sanctions that would ensure the members under the authority obeyed the rules. But consider the flip side. What if an authority with scant respect for morality creates rules that oppose natural law An authority having no consideration for the value of human life formulates laws that go against any sort of morality, would it imply that the laws it decrees are illegitimate just because they do not follow normal patterns of laws Austin did not question the sovereignty of the authority imposing the law but simply stated that any citizen under that authority is deemed to follow the directives irrespective of the legitimacy of the laws. If the sovereign or its laws are illegitimate then do their sanctions imposed on individuals or groups who do not comply with the laws, legal In examining cases where the legitimacy of the authority is left in doubt, we must determine whether the authority's legal system and laws are morally justified in making the laws or whether they violate human rights in objectionable ways. All countries create and adhere to their own rules of law when punishing offenders. In many cases, appropriate punishment is dealt for the severity of the crime committed. The more brutal the crime, the harsher the punishment. But there are nations that impose extreme retribution for even minor misdemeanors, China being a case in point. Each year thousands of Chinese citizens are put to death for petty offences. Many are carried out in secret and thus go unreported. Exactly what criteria nations like these employ to deal out this kind of punishment is a question that compels the investigation of different kinds of laws that operate on a society. Law of nature deals with morality and the theory tries to recognize a moral compass to guide in the creation of laws (Wikipedia). Usually feelings and notions of what is right and wrong are the underlying principles governing natural law. This could vary greatly depending on various interests. In the case of the countries forming the European Union which signed the Second Optional Protocol, these nations abolished capital punishment. The natural law here has prevailed and won over hearts and minds of leaders and lawmakers into agreeing that capital punishment is wrong and should be eradicated. In nations that retain capital punishment, natural law has not taken roots in governance. Natural law decrees that anything morally 'right' is law and anything 'unjust' is not a part of natural law. Theorists say that punishment carried out without the use of natural law will be judged by 'higher powers' - that divine retribution will take its course. Natural laws gain respect and credibility when they meet certain requirements such as being impartial and existing in the realm of public knowledge. Without these fundamental requirements the laws are less likely to be recognized or treated with much regard. Legal positivism or positive law is law that can be changed or updated depending on circumstances. For example abortion can be legal today but illegal tomorrow (Wikipedia). Cigarette advertising may be permissible today but prohibited tomorrow. Alcohol can be banned in world cup football venues to prevent hooliganism but not at local football events. There are many advantages with flexible laws. They can be adapted depending on the circumstances and needs of society at any given time. Newly elected governments placed in office can relax some laws but enforce other existing ones. On the internet, most websites have a 'terms and conditions' or 'terms of use' clause. These may be modified over time to keep up with changes made to the site and also either curtail misuse of the site or, encourage users to take advantage of additional benefits the site may have to offer. Inflexibility would bring businesses to a standstill. Some people are of the opinion that since positive laws are changeable, they are arbitrary laws without reason. This is precisely why positive laws must justify themselves with good background basis for their existence. Additionally, positive laws are laws that can be separated from ethics. For example driving on the wrong side of the road has very little to do with ethics and morals. Driving laws exist to enable the public to abide by one rule in order to avoid accidents. Each country has its own driving regulations. In the US, the left hand lane is meant to be used and in the UK, the right lane. A citizen of one country visiting the other must obey its laws. This is not a moral law but just a rule that citizens need to obey. A lack of these rules generally leads to confusion and chaos. One of the most influential legal philosophers of the twentieth-century was H.L.A. Hart who developed a refined theory of legal positivism within the framework of analytic philosophy. His ideas criticized John Austin's theory of law that the law is the command of the sovereign governing body bound to its people or members whose rule they're under. Another idea he developed is that there is a difference between primary and secondary legal rules, where primary rule controls conduct and secondary rules allow the primary rules to be altered, created or extinguished. His idea of the rule of recognition was a social rule that distinguished between those rules that had authority of law and those that did not. Marxist view of jurisprudence focuses on the connection between law and historical, economic and social structures and sees law as having no legitimate dominance. John Austin's book The Province of Jurisprudence Determined published in 1832, proposes his theory of law commonly known as the 'command theory' (Wikipedia 2005). Austin considered the science of general jurisprudence was better understood with the explanation and arrangement of basic legal ideas. His book aims to recognize the distinctive characteristics of positive law and separate it from the principles of morality and religion. These ideas have been criticized and adapted by later jurists such as H. L. A. Hart and Ronald Dworkin. As a student of Jeremy Bentham whose school of thought was founded on utility as a theory of value, Austin followed the principles of Utilitarianism (Freeman 1998). He espoused this viewpoint in understanding of law, and maintained that laws ought to operate towards advancing the greater good for the maximum number of people. Austin's viewpoint on Law was that it was 'a rule laid down for the guidance of an intelligent being by an intelligent being, having power over him.' (Wikipedia) Austin defined this as positive law and argued that positive law was a suitable study for jurisprudence. He states that: 'Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is supreme.' (Wikipedia) Divine laws, he defines as 'law set by God to his human creatures' and that God is above and beyond human law. He also states that: 'To say that human laws which conflict with the Divine law are not binding, that is to say, are not law, is to talk stark nonsense.' He stresses that a law introduced by a sovereign to its people, is not deemed invalid by a disagreeing divine or moral law. John Austin's theory of law stating that law is the command of the sovereign governing body bound to its people or members whose rule they're under, according to him is positive law. The sovereign body could not be legally limited but he did accept that 'popular opinion' may limit it. For example, a people of a nation may oppose an unfair law and demand its removal. Provided the sovereign body has been constitutionally elected and has a process where laws are reviewed and recommendations made, the unjust law may be modified or abolished altogether. A sovereign body that adheres to universally recognized legal systems will usually follow five main points: Rules forbidding some types of behavior. Rules requiring that individuals who are at fault to compensate those they intentionally or unintentionally injure. Rules stating the course of action that needs to be taken in forming contracts, wills or special arrangements which grant rights and create responsibilities. Courts and a legal process are followed in order to determine the guilt or innocence of an individual (incase of a criminal trial), punish the offender and compensate the victim. A legislature to re-evaluate old laws and make changes if necessary to keep with the times, and abolish old laws. There are occasions where cases are challengeable and questionable, where disputes arise from departures from normal course of law. This can occur due to three instances: International law lacks legislature. Individual nation states must give consent before the dispute is placed before international courts. There is a dearth of a uniform universal system of sanctions. Due to this, different sovereign nations may have radically opposing systems of law when dealing with criminals. Taking the first point. International law lacks legislature and using the death penalty as an example; more and more countries have relaxed their capital punishment laws and established a moratorium on executions. As of 2003 all countries in the European Union who signed the Second Optional Protocol - established in 1991 - have abolished the death penalty (NSWCCL 2006). This protocol is one of the five international human rights treaties that make up the International Bill of Human Rights. Last year, five countries ratified it and abolished the death penalty for all crimes bringing the total number of nations to have eradicated the practice to 120, outnumbering those that retain it. For countries that retain the death penalty, the ICCPR (International Covenant on Civil and Political Rights) contains article 6 which stipulates minimum standards needed to be adopted in capital punishment cases (NSWCCL 2006). Those standards are: a) Death penalty should be imposed for the most serious crimes where there is clear and convincing evidence leaving no room for doubt as to the persons guilty of it. b) A mandatory process of appeal and clemency to higher jurisdictional courts should be allowed. c) Pregnant women, new mothers and the insane should not be executed. d) Juveniles (under 18) should not be executed. e) In all capital punishment cases those sentenced to death should have the right to seek pardon or commutation of sentence and any or both may be granted (OHCHR). Countries that retain the death penalty and are prepared to follow the recommendations set forth by the ICCPR are considered more legitimate but not ideal. In the above case, although not universally accepted, a common law has gained acceptance in key nations. The sovereigns have all agreed to abide by certain moral standards and follow the above terms. The treaty brings nations one step closer to a universal justice system that follows natural law. Definitions of laws address three recurring issues, the first two of which are alike in the way that they are both obligatory. The first issue deals with situations when conduct is no longer optional but has become in one sense compulsory. Example: A bank teller suddenly faces the barrel of a gunman who has just entered. He demands money. In normal circumstances, the teller would not perform the act of just handing over the money, but because of the life or death situation, the teller is forced to comply with the gunman's wishes. The second issue deals with an individual's moral standings and obligations which may force an individual to abandon legal conduct of a sovereign nation. For example, a family has migrated to the United States from a foreign country and continues to practice the traditions of their homeland that are illegal on US soil. The third issue, questions the very nature of rules, how they are created and what do they consist of. Hart offers explanation of three rules in order to answer the above questions. The first are Mandatory Rules which are rules that force a group of people to behave in similar ways. For example, office staff may be expected to wear a uniform and report to work at a certain time. Mandatory rules are more consciously followed than social rules which reside in a lower level of consciousness. Social rules are rules which society has deemed as socially appropriate mode of behavior recognized by all. For example, when the phone rings, the unwritten social courtesy is to answer with a "hello" or when two people meet for the first time, the hand shake is the normal custom universally recognized and accepted. These are not mandatory but are socially acceptable if practiced. The next types of rules are legal rules which are determined by law. Any deviation from certain modes of behavior that the law has applied will result in punishment. For example, the legal age to drive is over 18. Possession of firearms is banned in most countries and those violating this law are punishable. John Austin's Province of Jurisprudence Determined, regards laws as commands and habits. Commands have a variety of imperatives (Bix 2005). Some commands such as "Leave now" contain a degree of authority and an element of obedience. Depending on the situation, this command may or may not have the threat of sanction. Requests are a lesser more polite form of order, used to acquire a service. Normally they have no urgency, nor are they backed by threat or sanction. Pleas are not commands but appeals for assistance or requests for clemency. Warnings can be of different types. Some warnings serve to protect citizens; eg. road signs or public announcements about the spread of disease. Others tend to be more command type, as with the above 'gunman example'. This type of warning carries with it a threat. Hart explains that a coercive order, those supported by sanctions, is not a command. Laws can be considered as coercive orders, in that they may compel or intimidate people by the threat of sanctions. For the very existence of recognized laws there needs to be a legal system adopted by a sovereign which a supreme or independent persons or a governing body that issues these orders backed by a threat of sanction which compels people to habitually obey them. These threats are more likely to be implemented in incidents of disobedience. "The laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign." The Command Theory and Legal Positivism Natural law theory states that a connection exists between law and morality. Legal positivism contradicts this. Genuine laws, claim the natural law theorists, must contain moral substance for them to be acceptable but legal positivists again disagree with this. Austin maintains that the command theory upholds legal positivism. For example, a sovereign body can deliver morally acceptable or unacceptable commands: "The existence of the law is one thing, its merit or demerit another". Concerns about the Command Theory Hart criticizes Austin's Command Theory when he says that although the theory contains a degree of consistency and uniformity, it cannot represent modern laws and legal systems which are in nature complex and intricate (Koons 1999). The command theory seems to apply to an absolute monarchy, but is less suited when applied to a society where the sovereign is a group. The question of the meaning of obeying a group arises. Could a group issue commands and can it share a common desire The command theory H. L. A. Hart argues cannot differentiate between a legitimate government and an armed robber, "give me your money or else". The "Gun Man" objection. Parliamentary or constitutional law, laws that govern the sovereign's actions, are not considered as law. Commands and the power of bestowing rules Many laws control human behavior and conduct. For example: stopping when the traffic lights turn red, or not smoking in public places etc. These are laws designed to bring order and maintain high comfort level for the maximum number of people. Other kinds of laws, for example, family law, contracts etc, confer legal powers. Hart differentiates public and private power conferring rules and compares both with commands. Commands tend to appear to state categorical demands. For example: In certain circumstances, you may do something in spite of your own interests or desires. In contrast, power-conferring rules express hypothetical or imaginary demands. In certain circumstances, you may do something if it might help achieve your goal. Whereas commands exclude options, power-conferring rules create options. But could commands be understood as hypothetical demands For example: In certain circumstances you may do something to avoid the risk of punishment. Or, they may be represented as having disjunctive form. In certain circumstances you may do something or risk punishment. As hypothetical demands, power-conferring rules could be represented disjunctively. In certain circumstances you may do something or sacrifice your goals. When comparing power-conferring rules with commands, the former condition is an incentive, whereas with commands the condition is a threat of sanction. Can doing nothing be ground for imposing sanction With commands, the sanction for noncompliance is independent of the rule dictating conduct. Laws binding the Sovereign Can a sovereign be above the law In constitutionally elected democracies and monarchies the sovereign comes under the scope of the law. Austin claims that in cases such as these, the law makers are either (a) commanding themselves or (b) each is "really" two people: sovereign and citizen. Hart considers (a) as absurd and argues that (b) requires sovereign independent such as the general public, power conferring rules i.e. citizens who rise to become associated with the sovereign such as lawmakers, are bestowed with additional rules of conduct that keep them within the boundaries of law and make sure they do not rise above the law. Laws are not the consequence of enactment While commands are distinct and dateable, some laws, e.g. customary law, are not the consequence of explicit enactment. Austin feels courts acknowledge custom as law and that judicial enactments are implied commands of the sovereign since the sovereign assigns power to the judiciary. Hart opines that courts consider certain customs as law but instead of turning it into a law the public is expected to act on them. Continuity of Authority and Law When there is a transition of sovereign authority, ie when governments change, will the new sovereign still uphold the laws laid down by the previous sovereign or do away with them Austin's Command theory could fall apart if there is disobedience between the different sovereigns. Any fresh laws the new sovereign might administer could take time to filter down to the public, gain acceptance and become a habit of obedience. The laws of the old sovereign, so as long as they have the consent of the new sovereign, need also be upheld and persisted. Laws without sanction Sanctions appear to be at the very heart of law in that if sanctions are not administered for unlawful deeds or noncompliance, then the law would seem impotent and anyone would violate it. The added consequence is that the sovereign might loose respect and seem unfit to rule. If criminals go unpunished for their crimes, citizens under the sovereign would have a lesser sense of security and justice. The threat of sanction for noncompliance, therefore, holds the fabric of society together. Variety of Laws When comparing modern laws with coercive orders three issues arise The content of laws Mode of origin Range of application Content of Laws The term criminal statutes will be the term used to refer the content of laws. The statutes of laws form guiding principles that state that some behaviors are wrong and as a citizen of the sovereign, a person has a duty not to act in appropriate manner. If the latter is done, then the person has violated his duty and sanction may be imposed against him. A connection exists between general orders and laws dealing with wrongful acts. This connection sets up a system to offer persons with compensation for injury caused from someone else's misdeeds. There are different legal rules that confer legal powers on private individuals. For example, the ability to create a will or contract requires certain criteria that the person must meet in order to create the will. Being of sound mind is a minimum personal qualification. The actual writing of the legal documents and their execution must also adhere to some rules. Criminal law tends to use the 'if-then clause' where a sanction is threatened to be imposed if something bad is done. These laws are orders backed by threats. In some instances, a statute conferring legislative powers on a subsidiary legislative authority describes a kind of legal rule that cannot be considered as a general order. Legislation implements the use of legal powers that operate in crafting legal rights. An authority uses these powers in a form of purposive activity and not under any sort of coercive control. Range of Application A disciplinary statute follows the coercive orders model where orders backed by sanction forms as a detriment to others from committing certain actions. Also there are relationships between parties, for example in the creation of contracts and will. Both the creator and receiver are bound by the agreement which simply gives certain orders to the other. This process is itself governed by certain rules of legislation that are self-binding. Mode of origin There are similarities between statutes and coercive orders in that both the execution of the law is a conscious datable act. Some theories that use the coercive control model when analyzing law assert that all laws have similarities to legislation and exist as law as a result of the deliberate creation of law. In the legal system some customary laws do not have the status of law until courts employ them to certain cases. Until then these rules are simply considered as a custom. These rules gain legal acceptance when courts apply them and pass judgment accordingly. For example in the case of fingerprinting which was previously unaccepted in criminal cases, gained acceptance and widespread use when they were discovered to vastly improve detection of criminals and innocence of the accused. When laws exist, a sovereign body or person must also exist and whose orders and rules either unspoken or open are considered as law. Key Elements of the Different Meanings of The Rule of Law (Leung) Antithesis of Arbitrary Power. Laws govern every individual in a society. This includes law-enforcement agency officials, government officials etc. Anyone acting outside the realm of authority can be subjected to the impositions of laws and suffer punishment as a result to the breach of laws. Equality Before the Law. The process of applying laws must be done without discrimination. Each individual must be subjected to law regardless of their race, religion, social status and wealth. For example, high profile public personalities who have been suspected of committing a crime should go through the same legal process and administered the same punishment if proven guilty, as an ordinary individual. Trials must be fair and conducted in a legitimate manner with an impartial judge and jury. A Formal, Rational Court System. 'Formality' and 'Rationality' describes the system as being predictable with little chance of guess work or arbitrariness. This shows the system as being transparent, having open, regular and established procedures as well as being objective and consistent in manner. Judicial Independence and Separation of Powers. Abuse of power by a government can be minimized if the judicial system is separate and independent from the legislative and executive. Judges should be uninhibited in making decisions without the influences and coaxing from higher powers. Another school of thought in jurisprudence is interpretivism and includes works of a number of thinkers such as Josef Esser, Theodor Viehweg and Friedrich Muller (Wikipedia). Interpretivism consists of three main points: Law is created by the judiciary, by law makers and is not a collection of conventions, data or facts. There is no distinction between law and morality but differences do exist. Law does not exist within nature and legal values and principles exist only in the legal practice. Conclusion When the law is a command of a sovereign that has no moral standings and are under immoral laws which oppose natural laws, there are frequent cases where justice has miscarried. In such a situation any trial a person may be subjected to would be flawed. Both natural law and positive law could be abused by an authority that does not recognize the moral underpinnings of the issue. John Austin's theory of law stating that law is the command of the sovereign governing body bound to its people, comes under fire for the unconstitutional legal norms that illegitimate sovereign nations uphold. In order for justice to take root, these nations must re-examine the standards by which they impose laws, revise and implement new theories of law. Austin's statement holds validity in sovereign nations that hold high principles of natural and moral laws, where sanctions are dealt fairly and in a constitutional manner and where the full force of justice is allowed to be carried out. Austin's theory holds less validity today where legal systems have increased in complexity. References Bix, Brian (2005) Stanford Encyclopedia of Philosophy. Retrieved on 30th Mar 06 from Freeman, M.D.A. (1998). Legal Theory at the end of the Millennium. Page 6. Oxford University Press. Hossain, Kamrul (Apr 2004). Punishment for the Violation of International Law. Available from [Accessed 25th Mar 06] Koons, Robert C. (1999). Legal Positivism. Retrieved on 29th Mar 06 fom Leung, Jason. The Rule of Law. Retrieved 29-Mar-06 from NSWCCL (8-Jan-06) Stand Up for your Rights - Second Optional Protocol. Retrieved on 27th Mar 06 from NSWCCL (8-Jan-06) Stand Up for your Rights. Death Penalty Overseas - International Law. Retrieved on 29th Mar 06 from OHCHR - Office of the United Nations High Commissioner for Human Rights. Safeguards guaranteeing protection of the rights of those facing the death penalty. Retrieved 29th Mar 06 from Wikipedia (2005). The Province of Jurisprudence Determined. Retrieved on 27th Mar 06 from Wikipedia. (12.2.06). Jurisprudence. Retrieved 18-Feb-06 from Wikipedia. (1-2-06). Interpretivism. Retrieved 28-Mar-06 from Read More