Natural Law and Legal Positivism - Essay Example

College: Describe an alternative to both Natural and Legal Positivism. What are the advantages/weaknesses of this theory over those other two Natural Law is a theory that supports the existence of a law whose content has its foundation on nature. On the other hand, legal positivism is a school of thought in philosophy of law and jurisprudence. According to this theory, there exists no inherent connection between the validity conditions of law and ethics. The theory defines law as rules made by human beings whether deliberately or unintentionally, and that, these laws must be submissive to the rules of determinism. In this paper, I will describe ethical positivism as an alternative to the natural law and legal positivism. Natural law applies to theories of ethics, politics, civil law, and theories of religious morality. Natural law as it applies to the theories of ethics, seeks to establish a definition for features of moral theory as nature dictates them. However, natural law theory does not recount on the history of the natural law development thought. Natural law theory finds its definition in ethics (Murphy 654). Any moral theory that relates to the natural law theory belongs to Aquinas. Every ethics analogy that includes material on natural law theory is definitely by Aquinas. It is therefore arguable that Aquinas natural law theory is the centre stage of a natural law position. The theory of natural law ascribes the origin of law to the supreme God. Natural law is a divine providence that originates from God himself. Natural law is therefore part of the theory of divine providence. At the point of view of human role as a recipient of this God's provision, natural law is a product of the principles of practical rationality (Waluchow 179). These are the principles that set judgment of the human actions either as reasonable or as unreasonable. Natural law is a preeminent of the theory of practical rationality. Practicing natural law is a participation in the eternal law. Eternal law is the rational plan that presents the ordinance of all creation. Therefore, natural law attains its quality as law from this base. The practice of natural law binds naturally. To learn natural law does not call for human methods of instruction (Waluchow 179). Humans learn the precepts of natural law naturally. Natural law judges between good and evil, maintaining that, people should do only good things and avoid the evil ones at all cost. Natural law is unique in itself in that, it does not fall into the contemporary categories for moral theories. On interesting feature of natural law is that, it is hard to tell when an ethics analogy ceases to be a natural! Natural laws are intact and cannot be broken or enforced. On the other hand, legal positivism is the theory that maintains that the existence and the content of law depend sharply on the social facts but not on its merits (George 31). The theory does not state that the law's merits are incomprehensible, insignificant, or marginal to the philosophy of law. It rather discourages the thought that the law's merits can determine whether the law or legal systems exist. The impact of any law in any particular place depends on the social standards that are in recognition as authoritative by the officials of the law. For instance, if the legislature enacts, judicial system decide, or social customs declare an act to be a law, then it becomes a law. According to legal positivism, law is anything that the society in question posits. Therefore, law is a social construction. Law is a command of the sovereign under the support of the force (George 31). However, legal positivism is not a confinement of law. The statement that existence of law depends on facts rather than its merits is a thesis about the relation amid laws, facts and merits, but not a thesis about the individual relata (Waluchow 179). Legal positivism is unique in that, it is not contradictory to natural law's moral doctrines and objective morality set in human nature. In order to understand the existence of law, legal positivism maintains that, there must be an account of what makes law distinctive. There must also be an understanding of common elements of the social control in the law. Therefore, law is characteristic of a basic form and basic norm. Legal positivism makes a distinctive difference between right and might. Right quantifies not in might. Therefore, law imposes obligations on the subjects. Law, in this since becomes a normative system and not a rule (Campbell 286). Law is not in existence in another law. This is to mean that; basic norm is not a legal norm! Law does not embed itself in force, or in a presuppose norm. The authority in which law finds its existence is social (Salmond 467). Law is valid as long as it defines itself on the bases of social rule through practice. Law respites on customs. These customs governs the authority to make decisions on disputes, binding reasons for decision, and ways for changing the customs. Moral and political contemplations tolerate legal philosophy. Reasons for establishing, maintaining, or reforming law comprises of moral reasons, which shape our legal concepts. However, the existence and content of law is identifiable without choice of moral arguments. A law of a given society is identifiable if the view focus on moral and political arguments (Campbell 286). Hence, law is any requirements that are regular with an elucidation of its legal practices that prove to be best justifiable in light with animating ideal. In this case, law is identifiable with the source-based subset of the reasons, not the valid reasons for decision. Law making, application and creation are constant activities. Every legal decision is partially determined and partially undetermined by law. Morality has authority to determine the existence and content of law. The rule of recognition is the overall principle of legal validity. Interestingly, one can know this rule without knowledge of the laws of a given society. Law does not satisfy the conditions that assesses it. Law may have an essential moral character yet it is morally defiant. The fact that law does a certain kind of justice, it does not do all kinds of justices. Morality and law have special levels of connection. Some are trivial others non-trivial. As a result, legal positivism does not support the existence of law on its merit. On the contrary, moral values gains from the existence of law. Law deals with moral matters. Legal controls morality (Campbell 286). Law imposes moral claims on its subjects and purports to obligate the subjects. Law is justice-apt. law is only valid as long as it imposes justices and is subject to reformation in case there is defiance in it. Ethical positivism is a theory in philosophy of law that insists that, there should not be norms in existence other than those that exist. Any other supposed norms are simply illusory imaginations (Nino 519). No individuals have the authority to judge the norms of any society. According to ethical positivism, norms are arbitrary. Ethical positivism indicates that, law, is an institution by which the responsibility of judge, legislator and citizens carry with them certain unenforceable but fundamental moral duties (Salmond 467). These duties are the ethical elements of the society. Ethical positivism establishes morality through judicial recognition and enforcement of laws that are positive. it also establish morality in the legislature enacting laws which is applicable with or without alternative to contentious moral or political judgments, and the citizens' participation in an ongoing process of just negotiation and discussion to determine the rule that are to be made obligatory in their communities, and the citizens demonstrate loyalty to the results of those democratic processes. Legal positivism indicates that is separable to ethics since some laws can exist without ethical content or legal rules without ethical components, and others that are positively evil like laws of slavery and segregation (Swartz 18). On the contrary, ethical positivism maintains that, no one has the authority to criticize any norm and that, the legal, judicial and social systems must cooperate in achieving the law of their community. Ethical positivism insists on the proximity of law in a society through practice. Legal positivism dwells much on the existence of law whereas ethical positivism emphasizes on the importance of both existence and merits of law as the key server to the law of any community. Ethical positivism is not complete if the determinants of the existence of law, evaluators and performers of that law do not participate in enabling the presence of law (Nino 519). The legislative, judicial and citizenry system of the community must join hands in bearing the law of the community. According to ethical positivism, people in a community deliberately their make laws whereas legal positivism denies human beings full responsibility of creating the laws that govern them (Campbell 234). The people, after making their own laws, they deliberately choose to adhere to the laws although judicial system governs the practices and the legislature makes decisions on extend to which the law becomes a defiant to the human nature. As legal positivism admit that rule can be without ethics, ethical positivism laws have internal morality that makes it go through the systematic process that verifies the validity of the rules (Swartz 18). The legal, judicial and citizenry system, deliberately design and debate publicly, accept and finally put into practice the rules. Ethical positivism insists on the application of right laws, avoiding evil laws, while legal positivism put all these laws into use (Nino 519). Laws can be morally good or evil; yet they obligatory to practice. On the other hand, natural positivism dwells on the rules that define the moral values of the society. The rules are directives. Ethical positivism is concerns itself with the ethics of the society (Campbell 234). It does not direct the society on what to do; it only states what is right. It is the choice of the people to follow what is socially ethical. Natural theory dwells on divine provision for the law of the society. People learn and put into practice these laws naturally. Ethical positivism makes the duty of creating, learning and putting into practice the laws, a deliberate human choice (Nino 519). Natural, law lacks objective justification for the validity of the moral standards and ideas concerning the rights and duties have about justice of social foundations. It is unfortunate to note that ethical positivism does not acknowledge the existence of natural law (Murphy 654). It is possible that, human beings come up with roles that they find convenient to them. In natural theory of laws, the laws come from God and so, people are obliged to put them into practice, creating morality in the society. Any one from another community can put into practice social morality in another community since the theory implies that people learn laws naturally. With the case of ethical positivism, the laws are only applicable to the people who belong to that particular society that holds the laws. These laws may be bias because thy affiliate to the needs of the people. Natural law makes human beings passive subjects of law. That is, human beings are only there to receive law from God and obey without questions. On the contrary, human beings play a very important role in coming up with the law of the land that governs them (Nino 519). They decide their law and choose to apply it. They dictate the law they want to adopt to direct their social way of life. They do not revive divine dictations by an overall being in the divine world. However, the ethical positivism does not mean to defy natural law. In conclusion, natural law is god given, it is naturally authoritative over human beings, and the human beings naturally know it. Legal positivism insists on the fact that the existence and content of law depends on social facts not the law's merits. Therefore, morality and law are inseparable. To develop natural law theory one must include within it a catalog of the fundamental goods, the basic values upon which the principles of right are set. Ethical positivism will consider the ethics of the society to create laws. For natural law, there is great need for the revolutionary action on the rational action in order to all human beings to realize actively the good they need to exhibit in the laws of their society. Legal positivism must establish the role of merit in the rule. Work cited: Murphy, Mark. The Natural Law Tradition in Ethics. Stanford encyclopedia of Philosophy. (2008). Nino, Carlos. Dworkin and Legal Positivism. Mind. Vol. LXXXIX, pp. 519 - 543. (2002) Campbell, Tom. 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