Natural Law and Legal Positivism

In order to answer this question one must assess and consider the concepts of natural law and legal positivism. It is also important to define validity and consequently power. Equally the law needs to be seen as being valid as it adds purpose and legitimacy to the law and the legal system itself, this in turn helps to determine the notion of obedience.

According to the thesis of natural law, the only way to evaluate the law is by reference to morality and ethnics. The thesis of natural law makes reference to different types of law. These consist of eternal law, divine law and natural law, all of which contain reference to God and morality. This premise upon the existence of human law. The higher principles of natural law are deemed to be legitimate and thus valid as they are believed to be linked to truth and justice. Morality is therefore seen as a good tool to measure validity under the natural law thesis because it provides an external aid for evaluation and it allows the ‘goodness’ of the law to be measured. It is clear that good law are real laws and therefore require obedience. This includes the power of the intervention of a sanction.

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This theory can be distinguished by the school of thought known as legal positivism. This theory is used to describe what the law actually is and premises on the idea that the higher principles identified in the natural law thesis can not be proved in reality and thus positivism looks to the human law, which by the definition of natural law could not contain validity without reference to the higher principles. Legal positivism removes the idea of morality^[1] from the precise structure. Positivism is based on the concepts of rules, created by a figure in authority and containing the imposition of sanctions if the law is broken. However, the structure is held together and measured against the concept of morality, obedience and power. This in turn provides validity through the usage of the concepts of ‘rules, authority and sanctions’. All of which can be objectively measured.

In terms of the classical approach to positivism, Jeremy Bentham criticised the assumptions made by the thesis of natural law and identified the ‘is/ought’ debate in order to introduce the legal ‘is’ to the moral ‘ought’. Bentham tried to create a scientific approach to the subject of law. He stated that morality and ethnics should be decided by the censor^[2] whilst the action of defining the law was left to the expositor^[3]. Bentham attempted to show through his theory of law that the structure was based upon a series of commands. Bentham believed that a command is an expression of an intention or wish^[4] regarding the conduct of other individual’s^[5]. Bentham attempted to separate morality from the law, without actually discarding morality per se. Instead Bentham says that morality plays no role in the definition of law. It is clear that the application of a scientific approach to law derives from the concept of power to impose sanctions as a matter of right. This in turn validities the structure of positivism.

Bentham’s theory can be distinguished by his ‘disciple’, John Austin. Austin premised his theory on Bentham’s command theory. It is clear that Austin’s theory is more refined as he separates different types of commands within the structure. According to his work ‘The Province of Jurisprudence Determined’ Austin stated that his commands theory originated from a sovereign figure. He said ‘Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds: by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign member….to a person or persons in a state of subjection to its author^[6]’. Thus, the sovereign figure is an identifiable person that is valid through the legitimate use of force and power under the object of authority. Austin uses this notion to show how laws emanate from the identifiable individual to produce validity and in effect authority and power.

In Austin’s command theory the question of why do people obey the law is posed. Austin decided that the reason people obey the law is due to the habitual role to comply from the sovereign. This is due to the perceived threat of the imposition of a sanction through the power afforded from the right of the law. Equally, according to W. D Ross in his works ‘The Right and the Good’, Ross identified the reason why people obey due to ‘the fact that its laws are potent instruments for the general good^[7]’. This indicates that the law is a power based subject and as such the threat of a sanction is based upon the notion of power. This is similar to the theory of Thomas Aquinas who believed that the ultimate goal of law is to preserve peace. This again, is arguably a power based subject that is structured on the concept of means and ends.

These theories can be distinguished by the works of John Rawls who in 1971 scripted a ‘Theory of Justice’ which identified a moral duty for people to obey law. This moral obligation by its nature implies a certain degree of coercion. This coercion by nature is a power that the law relies upon to enforce a sanction. However, according to Herbert L. A Hart who argued that ‘when a number of persons conduct any joint enterprise according to rules and restrict liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have been benefited by their submission’. Thus Hart identifies obedience as an internal and external source, his emphasis in his ‘principle of fair play’ that there are both private and official concepts of obedience. This by its imposition inserts power as the primary course of legal authority. However, Hart criticised the imposition of forced compliance as it is an unacceptable form of compliance. According to Hart, the positivist theory requires the free choice of an individual to comply. However, obedience as a matter of course is a power orientated tool. Obedience is a tool by which the law can be judged as valid, however the fear of an imposed sanction is by its nature power based.

In terms of modern positivist thought, Hans Kelsen indicated that law is based upon a set of ‘norms’. He stated in his works ‘The Pure Theory of Law^[8]’ that ‘all norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order- it is their reason of validity’. These norms are structured upon a hierarchy of components, which are small and specific in content at the bottom. These raise up in general application to become basic components. These only exist due to the validity of the ‘grundnorm’. This is the norm that occupies the apex of the hierarchy and validities the lower norms. This form of validity premises, due to its nature, on the legitimate use of force and thus power in the concept of authority. Again, this use of power is unjustifiable by Hart.

According to Hart, in his main work, ‘The Concept of Law’, he criticised aspects of Austin’s command thesis, namely the idea that the sovereign figure being identifiable, the idea that the law is a series of commands and the emphasis on the internal and external concepts. In Hart’s theory two distinctive types of rules, the primary rules, which limit or expand the liberty of an individual, and the secondary rules, which concern themselves with explaining the other rules. These secondary rules can be divided into the power to create legislation, secondly, the power to create adjudication, and finally the rule of recognition, which by definition is not power based, rather it is a set of conditions that a norm must follow in order to be valid.

This theory of law was subsequently criticised by Ronald Dworkin. Dworkin preferred to look at law as a function of a social convention and in effect a contract based on a system of rules and ‘non-rule standards’. Thus, when a court has a ‘hard case’ to rule upon they use both political and moral principles to interpret and apply the law, thus Dworkin argued that a separate ethos of law and morality cannot in reality exist. Thus, a social convention by nature is based upon the imposition of power through the perceived threat of a sanction. Dworkin used the social convention to demonstrate a rule of compliance through the imposition of power and authority in the law.

In conclusion, the nature of the differing schools of thought within jurisprudence are centralised around the concept of power. In natural law this premised upon the idea of God and morality through the nature and justifications of the existence of God and morality, and the effect of being judged by these institutions. In legal positivism the application of power is through the structure of law being delivered through an authoritative figure and containing sanctions if the enacted law is broken. The concept of power is therefore centralised in both schools of thought. Power is the main basis that validities the law and is the main working purpose of the law. However, in both schools of thought power is defined slightly differently and arguable is camouflaged by the terms of the good of natural law and the basic norm. The rule of recognition, although not a power orientated component, it is most certainly in existence due to the concept of power imposed by the other rules and regulations.

Footnotes

^[1] Morality in itself cannot be measured. Legal positivism asks why a tool that is imprecise and abstract should be used to measure something that should be precise.

^[2] ‘Ought’

^[3] ‘Is’

^[4] Known as a volition.

^[5] ‘What a Law is’, UC 1xix, 70-71; OLG 1.

^[6] The Province of Jurisprudence Determined.

^[7] Circa 1930, page 27.

^[8] Kelsen believed that ‘The pure theory of law is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question, what is law? But not the question, what ought it to be? It is a science and not a politics of law’. Pure Theory of Law (1934-1935) from volumes 50-51 LQR.