Theories of Law

Natural Law vs Positive Law

● Positivists argue that there is no connection between
law and morality and the only sources of law are
rules that have been enacted by a governmental
entity or by a court of law.

● Naturalists, or proponents of natural law, insist that

the rules enacted by government are not the only
sources of law. They argue that moral philosophy,
religion, human reason and individual conscience
are also integrate parts of the law.

● Naturalists recognise the existence (and the need

for) man-made law, but regard this as inferior to
natural law.
Natural Law
 What is Natural Law?
● It is an absolute theory of ethics that is not rooted in duty
or externally imposed laws.

● Instead it is found in our human nature and our search for

genuine happiness and fulfilment.
Aquinas built on the
ideas of Aristotle and ● There is a natural order in our world, determined by some
developed natural supernatural power that should be followed.
law into a moral
framework.
● Human beings are naturally inclined towards its moral code.

● The moral life is a life lived ‘according to reason’.

● By discovering our end telos or purpose, we can work out

how to achieve this.

● It does not give a fixed law; it is not always straightforward

and there is some flexibility in its application.
NATURAL LAW
PHILOSOPHERS
PLATO (427 – 347 BCE)
➢ Student of Socrates
➢ Wrote as the voice of Socrates
➢ Believed that human law should strive to reflect certain universal and
eternal truths.
➢ Nature is inherently reasonable and good.
➢ Law is the moral imperative and the ideal that humans must attempt to
achieve. The most basic law is to do good and avoid evil.

Socrates Plato
➢ The purpose of law is to serve as a moral guide on how to live the good
life.
➢ A human being achieves a state of justice through reason. The state
achieves a state of justice through law.
➢ Plato believed that there is a hierarchy of obedience. First people follow
the law out of fear, then out of habit and then out of the realization that law
is just.
➢ Since law should reflect a moral quality, Plato argues that it is just to
disobey an unjust law that does not produce harmony and justice. (Civil
Disobedience)
Aristotle (384 – 322 BCE)
➢ Student of Plato
➢ Law is derived from
Nature and is inherent in
all things animate and
inanimate.
➢ Law and justice are
meant to produce human
happiness. This
happiness is gained
through being virtuous
and controlling our “inner
beast”.
➢Unlike Plato, Aristotle
believed that justice was
within the grasp of human
beings.
➢Human beings are
endowed with the ability
to think and reason.
Therefore humans can
recognize their own nature
and make laws that are
suitable to that nature.
➢The perfect standard of
law is revealed through the
exercise of human reason
guided by observation.
This is called rationalism.
➢The laws of the state
must regulate human life
to help citizens to use their
reason to its greatest
potential.
Cicero (106 – 43 BCE)
➢Roman politician, lawyer and
legal philosopher.
➢Law is rooted a divine source;
Jupiter.
➢Natural Law is universal and
unchanging. Nature ensures the
common good.
➢Law is in the mind of “wise
and intelligent men” and they
are the standard by which justice
and injustice are measured
(philosopher kings).
➢If in the minds of “wise and
intelligent men” the law is in
conflict with the laws of nature
it should be disobeyed. ➢Civil disobedience should be used to
force the government to make laws that
conform to natural law.
St. Thomas Aquinas ➢Dominican Monk.
(1224 – 1274) ➢Influenced by Aristotle and
Christian teachings.
➢Natural Law and Rationalism
are consistent with Christian
truth.
➢Law must mirror a natural
world order made known
through reason and the revelation
of the prophets. Law has a moral
purpose.
➢Law gains its legitimacy
through reason. The validity of
law is based on its moral content
or justness.
➢Unlike Aristotle, Aquinas did not believe that the state leads
people to their greatest potential. The state is subordinate to
the Catholic church who is in charge of moral matters on Earth.
Therefore an unjust law does not have any binding force.
Such laws are an act of violence against the people of the state.

➢Aquinas defines
human law as “the
ordinance of
reason for the
common good,
proclaimed
publicly by a ruler
who has care for
the community”.
➢English Philosopher and John Locke (1632 – 1704)
Political Theorist
➢All people have natural rights
given to them by birth from God.
The most fundamental rights are
life, liberty and property.
➢Natural law states that no person
should deny these rights to
another therefore the main goal of
the state is to preserve these rights.
➢In the state of nature, people’s
passions often get the better of
their reason which leads to the
oppression of the weak. People
enter into civil society to hand over
authority to the state to preserve
rights.
➢Locke recommends that if the ruler violates the
natural rights of the people, the people are justified in
rebelling and replacing an unjust government with one
that will respect their rights.
“The Taking of the Bastille”
during The French
Revolution (1789)
R. M. Dworkin (1931 - )
➢Political and Legal Philosopher
➢Law must possess a moral content.
➢Legal reasoning is interpretive as we
try to make political and moral sense
out of difficult situations or cases.
➢Law has to have political integrity.
Law should be a union of widely held,
coherent political decisions that show a
consistency of moral choices and a
shared vision of social justice. Law
cannot focus on individual wants and
desires.
 Evaluating Natural Law
● Simple clear cut rules that can be
followed by everyone.
● Primary precepts are common to all
societies. Suggests a universal truth.
● Focuses on the character of human
beings and how we truly flourish.
● Secondary precepts allow enough
flexibility to accommodate different
cultures.
● Supports the use of reason, as well as
imagination and emotion. So it is open
to everyone, religious or not.
● Difficult to apply basic precepts to
complex situations e.g. spending on schools
vs. hospitals.
● Suggests there is a common fixed human
nature that applies to all people, e.g. being
heterosexual. (Against cultural relativism)
● Interpreted rigidly (e.g. by the Catholic
Church), cannot cope with individual
moral problems.
● Naturalistic Fallacy: You can’t derive an
‘ought’ from an ‘is’. If our human nature
‘is’ to procreate doesn’t mean we ‘ought’
to.
● Too focused on reason. Human nature
can’t be trusted (The Fall). Must rely on
the Bible.
POSITIVE LAW
● Imagine a powerful
sovereign who issues
commands to his or her
subjects. They are under a
duty to comply with his
wishes.
● The notion of law as a
command lies at the heart
of classical legal
positivism as espoused by
its two great protagonists,
Jeremy Bentham and John
Austin.
● Modern legal positivists adopt a considerably more
sophisticated approach to the concept of law, but, like
their distinguished predecessors, they deny the
relationship proposed by natural law, between law and
morals. The claim of natural lawyers that law consists of
a series of propositions derived from nature through a
process of reasoning is strongly contested by legal
positivists.
● The Age of Reason – an intellectual movement in the
17th-century Europe that emphasized the logical analysis
of philosophical problems.
● Philosophers began to analyze human nature and society
without relying on religion.
● Many new philosophers began to challenge Natural law.
POSITIVE LAW

● Developed in England
during the 16th and 17th
century following a
period of widespread
religious, political, and
social upheaval.
● This period of violence,
fear, and confusion
affected the way thinkers
of the time viewed the
origin and purpose of law.

● Civil War & Charles the

1st is beheaded
● Positive law:
The theory that law is a body of rules formulated by the
state, and that citizens are obliged to obey the law for the
good of the state as a whole.
It had no moral purpose other than to ensure the survival
of the state, and obedience to it was no longer a matter of
conscience.
● Law is simply what the
political authority or law
maker commands.
● Justice means conformity
to the law.
THOMAS HOBBES (1588-1679)
Leviathan

● Fled to Paris in 1648 after

witnessing the violence of
the civil war.
● Leviathan- Book which
put forth a new purpose
of law.
● He believed that law was
necessary to curb the
greed, fear, and violence
that were part of human
nature.
● All people must obey the law at all times. To not
follow the law would only lead the world into
chaos.
● The weakness of natural law is that it allows people
to find their own meaning of the law. This makes
law ineffectual and legitimizes tyrants.
● The state of nature is a state of perpetual war where
the strong prey on the weak. In the state of nature
life is “solitary, poor, nasty, brutish and short.”
● In order to survive, people must give up their rights
to the state. The sole purposes of law is to maintain
order and strengthen government.
John Locke (1632-1704)

● Locke’s synthesis of
natural and positive law
theory would influence
political and legal
philosophers for
hundreds of years
 Jeremy Bentham (1748-1832)
● His analysis of human
nature led him to believe
that people tried to achieve
the maximum amount of
pleasure and happiness in
their lives.
● He proposed a new way to
judge whether a law was
good or bad: the law should
be evaluated by its utility to
society as a whole.
● A truly just law provides
“the greatest happiness for
the greatest number” of
people- this became known
as utilitarianism
 John Austin (1790-1859)

● While he agreed with

Bentham, he separated
law completely from
morality.
● He believed that natural
law and individual
morality are too subjective
to secure the happiness of
the majority.
● To judge laws using a moral or religious code would
mean that each person in society had his or her own
interpretation of the law and therefore could obey
those laws they judged to be good and disobey those
they thought were bad and no society can function
like this.
● Positive law, on the other hand, provided an objective
measure of judgment- every law set had to be obeyed
and there was a concrete consequence based in
tradition (Precedent).
 H.L.A. Hart (1907-1992)

● The father of modern

legal positivism
● Hart argues that law is a
system of rules and that
all societies have social
rules.
● These rules are divided
into Primary Rules and
Secondary Rules
● Primary Rules
● What an individual can and cannot do
● Secondary Rules
● Rules addressed to officials to administer primary
rules (enforce them)
● Secondary rules are divided into:
1. Rules of adjudication -to resolve legal disputes
2. Rules of change -allowing laws to be varied
3. Rule of recognition -allowing laws to be
identified as valid
● His goal was to take morality out of law