Assignment of: Topic:

LL322 Jurisprudence Legal positivism vs. natural law theory.

ICFAI LAW SCHOOL,

THE ICFAI UNIVERSITY, DEHRADUN
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A ASSIGNMENT ON- Legal positivism vs. natural

Law theory.
_____________________________________________________________________________________

SUBMITTED TO: MR. SANTOSH KUMAR SIR

_____________________________________________________________________________________

SUBMITTED BY: DAVINDER SINGH

ENROLLMENT NO: 21FLICDDN02176
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SUBMISSION DATE: 17/4/2024

_____________________________________________________________________________________

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

Table Of Contents:

 Acknowledgement………………………………………...3
 Introduction………………………………………………..4
 Natural law meaning and definition……………………….5
 Characteristic of natural law…………………………….5-6
 Critical appraisals of the theory…………………………...6
 Principles of natural law under Indian law………………..7
 Legal positivism evolution and challenges………………..8
 Meaning and definition……………………………………8
 Empiricism………………………………………………...9
 Positivism and legal principles…………………………..10
 Fullers internal molarity of law…………………………..11
 Conclusion……………………………………………….12

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

Acknowledgement:

I would like to express my heartfelt gratitude to my Jurisprudence

instructor, Mr. Santosh Kumar Sir, for providing me with the
wonderful opportunity to complete a wonderful Assignment on
the topic “Legal positivism vs. natural law theory:” which also
taught me many new things. I am extremely grateful to her.

Second, I'd like to thank my parents and all of my friends for their
assistance in completing this endeavour within the time
constraints.

It aided me in expanding my information and skills.

Finally, I'd like to thank all of my supporters for inspiring me to

complete their endeavour ahead of schedule.

Thank you all once more.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Introduction:

Legal positivism and natural law theory represent two contrasting

approaches to understanding the nature of law and its relationship to
morality. Legal positivism asserts that the validity of law is determined by
its source, rather than its content. According to this perspective, laws derive
their authority from the recognized institutions or processes that create
them, such as legislation or judicial decisions, rather than from any inherent
moral principles. In essence, legal positivism holds that law is separate from
morality and that a law can be valid even if it is morally unjust.

In contrast, natural law theory posits that there is a connection between law
and morality, suggesting that the validity of laws depends on their
conformity to moral principles inherent in nature or discernible through
reason. Advocates of natural law argue that laws that violate fundamental
moral principles are inherently invalid and should not be obeyed.

These two theories have profound implications for understanding the role
of law in society and the basis of legal obligation.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Natural law – meaning and definition:

The term ‘Natural law’ does not hold a specific definition, unlike others. The
meaning and definition of the term differ along with different interpretations of
jurists. Such interpretations mainly depend upon the development of legal
thoughts and systems.

According to R.W.M Dias, natural law is a law that derives its validity from its
own inherent values, differentiated by the living and organic properties, from the
law, promulgated in advance by the State or its agencies. Further, Cohen
described natural law as a way of looking at things and a humanistic approach of
judges and jurists, and not a body of actual enacted or interpreted law enforced
by courts. Blackstone further observed the nature of natural law in the following
words, ‘The natural law being co-existent with mankind and emanating from God
himself, is superior to all other laws. It is binding over all the countries at all
times and no man-made law will be valid if it contrary to the law of nature’.

 Characteristics of natural law:

The following are the characteristics of the natural law:

 The main characteristic of natural law is that it follows an empirical method.
It means that the principles of natural law follow the idea of reaching to a
conclusion after making a proper enquiry or analysis about the subject matter
instead of just accepting the conclusion without any substantiation.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Natural law is universal in nature and is based upon moral ideas.

 Natural law is dynamic in nature and thus its principal changes according to
the needs and requirements of society.
 It provides a common base of legal philosophy and ethical jurisprudence
based upon justice, morality, reason and ethics.
 The principle of ‘due process of law’ and ‘rule of law’ in the USA, England
and India respectively are based upon the philosophy of natural law.
 The origin of the basic rights of an individual and the development of human
rights jurisprudence can be traced back to the philosophy of natural law in the
19th century.

 Critical appraisals of the theory:

 The aspect of the theory that includes moral obligation is not always in
consonance of the needs of society. There should be the existence of some
restrictions and differentiation.
 The concept of morality is not stagnant; it differs from place to place. It differs
as per the conscience of an individual or a group. Therefore, it is inappropriate to
say that the natural law theory is universal in nature.
 The principles of morality though differ with change in places but remain
stagnant with the change in time. On the other hand, the law requires change over
a period of time as per the requirements of society.
 Disputes that involve legal aspects can be challenged in court but a moral conflict
cannot be resolved via judicial scrutiny. Even if it is challenged in a court of law,

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

there are no set of guidelines that govern the concept of the morality of an
individual.

 Principles of natural law under Indian law:

 Recognition of fundamental rights as inherent to human dignity and essential for

a just society
 Explicit guarantee of fundamental rights in the Indian Constitution
 Rights such as equality, freedom of speech, life, personal liberty, and
constitutional remedies reflect natural law principles
 Judicial reliance on natural law reasoning to protect human rights, promote
justice, and strike down unjust laws
 Natural law principles inform interpretation and application of laws, particularly
in matters concerning human rights and constitutional law.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Legal Positivism: Evolution and Challenges:

Legal Positivism is a jurisprudential approach to interpreting law in positive

terms. It seeks to separate law from its ethical and modern concerns and focuses
more on its structure and origin. Some of the main influential thinkers of this
school were John Austin, Jeremy Bentham and Thomas Hobbes.

 Meaning and Definition:

Legal Positivism can be defined as an approach to understanding and interpreting

law rooted in jurisprudence which seeks to separate law as a separate and
independent field of study which is divorced from ethical, moral or social
concerns.
 Law is a command by a human sovereign.
 Law is separate from morality and has no identifiable ethical concerns.
 Law should be studied positively i.e. “What is law?” and not normatively
i.e. “What should law be?”
 Study of Legal concepts is separate from historical or sociological analysis.
 Legal system is self sufficient, to make decisions, it does not need to have
social concerns.
 Precedence of facts over moral judgements.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Empiricism:

Empiricism is often seen as the antecedent to Legal Positivism. Empiricism is

based on the notion that the validity of facts comes from sense experience. It
denies the existence of any phenomena which cannot be verified with the five
senses. Empiricism regarded metaphysics as speculative and anything beyond
sense experience as uncertain and inaccurate. Empiricism brought about a
comprehensive methodology to understand the world in positive terms, and Legal
Positivism was a result of this outlook.
Thomas Hobbes : Thomas Hobbes was the first to lay out concretely the positive
philosophy of Law. HIs legal philosophy was based on the supremacy of
Sovereign power. According to him, law, however arbitrary or unjust, is law if
the Sovereign has commanded so.
He was one of the foremost modern thinkers to give the idea of a supreme
sovereign whose authority is unquestionable and absolute, and who is the sole
lawgiver in a given state.
Jeremy Bentham:
Bentham was perhaps the most prominent British Legal Positivist who laid down
the groundwork of Positivist legal philosophy with the Sovereign at its helm. He
discusses two categories of people concerned with the legal system.
Expositors– These are people who read explain the law and do not pass any moral
or ethical judgement on it.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Positivism and Legal Principles:

Dorkin was the most prominent proponent of Legal Principles being a part of law.
For him, rules were implemented in an all-or-nothing manner. They were to be
applied without modification and questioning.
But judges, while deciding cases, cannot apply rules without seeking guidance
from certain legal principles which are conventionally considered extralegal by
positivists. For Dorkin, the actual cases were too ambiguous and full of detail
which cannot be adequately captured in rules. To decide on a matter judiciously,
one needs guidance from eternal principles which help the judges decide. For
him, these principles were not extralegal, and should be considered a part of law.
For example, in the case of Riggs v. Palmer, a murderer defended himself on the
grounds that he had the will of the victim. The court found itself in search for a
rule regarding such an assertion, but could not find any. The court relied on the
principle that such a heinous crime should not go unpunished, regardless of the
will of the victim. Such a scenario, in Dorkin’s viewpoint shows the inadequacy
of rules and why legal principles should be formalized and considered an integral
part of the field of Law.
Dorkin’s viewpoint was met with much opposition from the positivists, who
thought that law could not consist of anything apart from objective, definite rules
and principles were primarily subjective and metaphysical in nature, which was
contrary to their assertion that law is an absolute science.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Fuller’s internal morality of Law:

The Morality of Law, Lon L. Fuller asserts that law is subject to an internal
morality consisting of eight principles:

 The rules must be expressed in general terms;

 The rules must be publicly promulgated;
 The rules must be (for the most part) prospective in effect;
 The rules must be expressed in understandable terms;
 The rules must be consistent with one another;
 The rules must not require conduct beyond the powers of the affected
parties.
 The rules must not be changed so frequently that the subject cannot rely on
them;

In Fuller’s view, law consists of an internal morality which is essential for its
functioning. He mentions 8 guiding principles of which if any law is ignorant, it
should not be considered law. According to him, to achieve the purpose of law,
which is to maintain social order and stability, law has to be held subject to a
universal notion of morality, which is represented in his 8 principles.

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 Assignment of: Topic:
LL322 Jurisprudence Legal positivism vs. natural law theory.

 Conclusion:

In conclusion, legal positivism and natural law theory represent two

contrasting perspectives on the nature and foundation of law. Legal
positivism emphasizes the idea that law is a human creation, deriving its
validity from social recognition and authority rather than moral principles.
It asserts that there is no necessary connection between law and morality.
Conversely, natural law theory posits that law is inherently bound to
morality, asserting the existence of universal principles that govern human
conduct and serve as the basis for just laws. While legal positivism
prioritizes the importance of legal rules and institutions, natural law theory
emphasizes the moral dimension of law and its role in promoting justice and
human flourishing. Despite their differences, both perspectives contribute
valuable insights to the ongoing discourse on the philosophy of law,
enriching our understanding of the complex relationship between law,
morality, and society.

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