Natural Law and Legal Positivism.doc

Natural Law (point of views), legal positivism (Point of view) and the core differences between them.
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  “Natural Law and Legal Positivism: Theoretical Perspective”  There have been many different views expressed by theorists regarding therelationship between law and morals, and these views have influenced many legal reforms. However, it has to be remembered that an unjust law is no law atall and for this sole reason there have been various changes and modificationsin the legal system. It is useful to begin with an explanation of thecharacteristics of, and distinctions between, legal and moral rules, beforeproceeding to explore areas of coincidence and areas of divergence. Legal rules were demonstrated by Sir John Salmond as 'a group of principlesrecognied and applied by the government in the administration of justice'. !hereasmoral rules are 'beliefs, values and principles that are set by society, determining whatis right and wrong'. "   In the domain of law, there are a wide range of legal theories. Two,in specific, have ended up being exceptionally compelling in the improvement of !estern legal convention# Natural Law  2    and legal positivism  3  . $atural law holds,basically, that there is a basic moral law or moral supply of law above man, thefundamental statutes of which are sensibly understandable. %an&influenced law,eeping in mind the end goal to be simply, ought to be as per and not damage thosestatutes or rules that natural law expresses. Interestingly legal positivism, asenunciated by John Austin  4  , essentially holds that law and morality are in a generalsense different and isolated. (s opposed to hold man&made law up to an ethicalstandard with a specific end goal to decide its legitimacy, legal positivism eeps upthat law is substantial essentially by virtue of the command of the "sovereign"  . )  Inspite of the fact that it is preferred that law overlaps with morality is subjectively preferable, but objectively speaing, morality has nothing to do with that law's validity as law. *  In reality, +ositivists, for example, Hart, %ill, and entham believe that lawmanages the conduct of its subjects and resolves the conflict. -urthermore, the lawhas no ethical character a law which exists is a law despite the fact that even if wedon/t lie it. $atural Law scholars, for instance, 0evlin, -uller, and (ristotle believethat law and morality are associated. The administration has a privilege to ensure themoral structure of the society if a law isn't moral then it has no legitimacy. 1ne of thefocal claims of this tradition is compactly clarified by the opening section of -innis'boo, Natural law and Natural Rights: "There are human products that can e secured  1   Sir John William Salmond and Patrick John Fitzgerald, Salmond on jurisprudence (12 th Edn 1966), Sweet & a!well" 2   #he $nwritten %od o' $nieral moral *rinci*le that $nderline the ethical and legal norm % which h$man cond$ct i ometime eal$ated and goerned" #he term nat$ral law i deried 'rom the +oman term $ nat$ral" -dherent to nat$ral law *hiloo*h are known a nat$ralit" 3  .iew o' man/made law a it i et (*oited) % man 'or man rather than a it o$ght to %e" 0t im*lie that legal r$le are alid not %eca$e the are rooted in moral or nat$ral law, %$t %eca$e the are enacted % legitimate a$thorit and are acce*ted % the ociet a $ch" 4   John -$tin i conidered % man to %e the creator o' the chool o' analtical $ri*r$dence, a well a, more *eci'icall, the a**roach to law known a legal *oitiim" 5    -ltman, 34P 2551, *" 7" 6   6  -ltman, 34P 2551, *" 68"   !ust through the organiations o# human law$ and prere%uisites o# viale sensiilit& that lone those estalishments can #ul#ill'"  (    2iven these brief definitions, it is anything butdifficult to see that both of these theories are in a general sense at odds. 3  There is certainly numerous spheres of legal rules, both statutory and case lawthat have been impacted by changing moral values in society, for instance, in"4*5 the homosexual relationships at the age of 6" 4  were decriminalied andlastly reduced to "* in the year of 677". "7   (dditionally, progress has been madesince 677) with the presentation of )ivil *artnerships  ++ , and there is even a 2ay %arriage (ct that is also derived from +arliament. "6   (lso, 8 v 8 "9   finally at lastenabled the law to find up to changing ethical values and made marital rapeillegal. In the dominant decision, conveyed by Lord :eith of :inel, opined that ,the #iction o# implied consent- has no helpful reason to serve today in the law of rape. The court at that point held that a conjugal rape exception did not existin ;nglish law and thus the accused was sentenced for the rape of his betterhalf. "<   %oreover, judicial reform of the law may be influenced by publicmorality. In the sphere of contract law, the e=uitable remedy of promissory estoppels, which is developed by Lord 0enning in )entral London *ropert& . /igh Trees /ouse$ +0    was influenced by the moral rule that promises should notbe broen. The =uite recent instance of R v 1rown and others  +    regardingsadomasochistic acts which were consented by adults in private raises theconcerns as to whether the law should maintain moral values. This act of sadomasochistic were held to be unacceptable by the general society, sotherefore should that imply that the law maintains this moral value and maesit illicit> This particular case raised the issue of the debate of moral and legalthemes. The legal issue concerned the validity of consent and the lawfulness of acts in private and lac of it and on the other hand the moral theme concernedwere whether an individual ought to be compelled to conform to the will of thedominant part of the society, infringing on the rights of the individual for thegreater good of the society. This context raised the debate of legal positivism 7 John Finni, Natural Law and Natural Rights (2 d Edn, 34P), 1985" 8   :ogroe, +ichard -" Sir William ;lacktone< #he 0nterection o' Poitiim and at$ral =aw #heor" Scholar o' the =aw< Englih J$ri*r$dence From ;lacktone to >art, ?4 Pre, 1996, **" 21@A5" 9   Se!$al 3''ence -ct 196, c" 65" 10   Se!$al 3''ence (-mendment) -ct 2555" c" 77" 11   :iil Partnerhi* -ct 2557" 12   #he arriage (Same Se! :o$*le) -ct 251B (c" B5)"   13   +  + C1991D 4>= 12" 14   0%id" 15   :entral =ondon Pro*ert #r$t =td  >igh #ree >o$e =td C197D ; 1B5 16   +  ;rown and 3ther (1997) 1 ac 212  and natural law theory, which is concerned to a great extent to which the lawshould enforce moral values or not. The ol#enden )ommittee  +(    exploredlegalising homosexuality and prostitution and this brought up the issue of howfar law should go in upholding morality. "3  Hart and %ill believed that the lawshould not be utilied to enforce morality and then the people should not bemade to comply with the will of the majority of the society. Hart believed that itwas undesirable, pointless and morally unsuitable for the law to force morality since it infringes on the rights of people. "4   1n the other hand, 0evlin, however,disagreed stating that the society shared a common morality and that the lawshould mediate to punish acts that offend this mutual morality. He evenexpressed that a failure to mediate could bring about the disintegration of society. 67   In R v 1rown and others  2+ , the Lords agreed with 0evlin, holding thatthe sadomasochistic demonstrations were morally unsuitable as per society and that in this manner the law should intervene to punish those acts asillegal. 66 8egardless of whether the law should uphold moral values, is aspontaneous issue of debate however it is stressing that the Lords favoured0evlin and that the rights of people were infringed upon so as to enforcemorality. However, the diversity of the society can put an impact on this issueand in some areas it can be seen as only be partial. -or instance, abortionattracts a huge diversity of moral values. ( large portion of the society viewsthis as immoral and they will never view it as tolerable. However, others feelthat it is moral if it is only done for medical needs. -or instance, in the case of  illic5 . est Nor#ol5 and isech Area /ealth Authorit&  23  $ if the court had torule that parental consent was re=uired then there is a ris of increasingnumbers of teenage pregnancies. 1n the other hand if it was ruled thatparental consent was not necessary then there is a possibility of encouragingunderage sex. -or the betterment of the society the law should and ought tobalance between law and morality. (gain, the law has however modified withchanging moral values in various spheres of law, i.e. homosexuality. 6<  $aturallaw scholars base their whole hypothesis of law on morality, so for themmaintaining morality is obviously fundamental. (ristotle constructs his theory with respect to the moral norms which govern human behaviour, his thoughtderived from the nature of people and the nature of the mind. This later ended 17   htt*<www"*arliament"$ka%o$tliing/heritagetran'ormingociet*riate/ lierelationhi*collection1e!$al/o''ence/act/196wol'enden/re*ort" acceed, 21t -*ril 2518" 18   =ewi (2516), *" 2A" 19   19 Gerald Hworkin, Helin Wa +ight< =aw and the En'orcement o' oralit, 75 Wm" & ar =" +e" 92 (1999)" 20   Hworkin, +onald ", "Lord Devlin and the Enforcement of Morals" (1966)" Fac$lt Scholarhi* Serie" Pa*er B611" 21   0%id" 22   0%id" 23   Gillick  Wet or'olk & Wi%eck -rea >ealth -$thorit C1986D -: 112" 24   0%id"  up as the 0ivine Law and ?ir Thomas (=uinas went ahead to state that if this0ivine Law clashed with man&made laws then the 0ivine Law or law of 2odshould prevail. 6)  $atural Law scholars emphatically believe that the law shouldnot only uphold morality, as well as that morality is the source from which lawderives. @ontrary to this theory are positivists, who strongly believe thatnatural law is 'nonsense upon stilts'. They have no consideration or don't taea view that at all for the law to uphold moral esteems, they just only care aboutthe man&made manners by which the law is made. ?ir Aeremy entham and Aohn (ustin are positivists, who characteried law as a group of principleswhich is enforced by the sovereign and which the bul part of the society is inthe habit of obeying.  To conclude this argument, it can be said that law and morality is lie twosides of a coin. ut the complexity is that natural law scholars constructeverything with respect to laws moral values, while positivists are notconcerned by this at all. The threat in law upholding moral values is that it caninfringe on the rights of people who don't conform to the 'common morality' of the society, as was found in the decision of 8 v rown and others 6*  and othersectors of law discussed above. Law is successful in adjusting and changingwith shifts in moral opinion as derived in the current @ivil +artnership act 65 .ut, however, the progress here has been ensuring the rights of people.2enerally, law and morality obviously have a close relationship, as found in+rimary Law, in spite of the fact that there are spheres where it is hard to findthese two, for instance, abortion. ut at the end of the day, it has to beremembered that an unjust law is no law at all. It is obviously essential for thelaw to uphold moral values but it simply should be done in a way thatguarantees the minority don't suffer. 25   #homa -I$ina,  On Law, Moralit and !olitics (>ackett), !iii/!!ii and 11/8B" 26   0%id 27   0%id
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