To decipher this
statement and analyse the validity of its claim I will first consider the
points at which natural and positivist legal theories are engaged in
fundamentally different projects and solving different problems. Next I will
consider the overlaps between the two sets of theories that suggest that they
are engaged in the same project and so are more than ships passing in the
night. I will then conclude that the positivist and natural law traditions are
more than ships passing in the night and in reality although they sometimes
take fundamentally different stances on issues of legal theory, common ground
can be found where one must subscribe to either the positivist or natural law
tradition.
Section 1- Natural
Law theory and Positivist Legal theory are ships passing in the night
One difference
between positivist and natural law theories is that the positivists separate
law and morals whilst the natural law theorists think that law includes at
least some moral elements.
Hart accepts the
separation of two distinct projects: theorising about law as it is, and about
law as it ought to be. He believes that Bentham and Austin were trying to
establish that a rule cannot be considered law just because it is moral and a
law is not valid because it is moral. Hart then uses this idea to come to the
conclusion that there is no necessary relationship between law and morality.
This is the ‘separation thesis.[1]’
However, it is arguable that there is an overlap between Hart and the natural
legal theorists. Hart thinks that the Rule of Recognition may incorporate moral
principles[2],
as in the case of the US Constitution[3]
where ‘the ultimate criteria of validity incorporate principles of justice or
substantive moral values’. However Hart does not say that law must contain
moral elements. Hart is a soft
positivist[4] so
he allows laws and morals to intertwine but does not say that they must and
therefore law and morals can stay completely separate. In this way positivism
and natural law theory can be aimed at different projects, positivists focus on
the law alone whereas natural legal theorists focus on law and morality and
inextricably linked fields.
At the other end
of the jurisprudential spectrum is Aquinas, a natural legal theorist, who
argued that Law is a rule in virtue of which one is led to perform certain
actions it binds one to a certain course of action[5].
He argues that law ought to be moral in order to be valid. He explains that human
law should ultimately come from the eternal law which is God’s law for all of time.
Eternal law[6] is
known via divine law[7]
which includes all religious manuscripts that enable humans to have access to
the law of God. These manuscripts are understood by humans through reason and
good human law should include these moral principles[8].
It is through this process of incorporating God’s will and therefore morals
into human law that Aquinas explains that law should always contain moral
elements. Aquinas emphasizes the fact that just law should oblige the
conscience and be aimed at the good of society[9].
However, he makes clear that if law is unjust it does not mean that you
automatically should disobey it because this may lead to scandal and that is
detrimental to the good of society. This is clearly still relevant today when
we experience scandals such as the London Riots of 2011[10].
It is this aspect of Aquinas’ theory that suggests that positivist and natural
legal theories are fundamentally different projects and so are not in
opposition.
Another clear
point of opposition between natural law theory and positivist theories is the
distinction between is and ought. Positivist theories aim at a scientific
jurisprudence based in logic and describing law as it is, whilst natural law
theories are normative and talk about law as it ought to be.
Hume[11]
famously stated that you cannot derive a statement about what ought to be from
a statement about what is. Essentially this gives rise to the naturalistic
fallacy[12]
whereby natural law theories confuse ‘is’ and ‘ ought’ statements and are thus
illogical. Therefore positivists are careful to make a distinction between what
the law is and what the law ought to be.
Few positivists emphasise
this distinction more clearly than Hart. Throughout his famous work ‘The
Concept of Law’ [13]
he is careful to maintain that he is describing the law and not making claims
about what the law ought to be. Hart views law as a human creation established
through political power and claims to use sociology to explain that how people
talk about law shows that law itself is social reality[14]. However, Hart’s claimed sociological view of
law has come under fire from Roger Cotterrell[15] whom
argues that Hart does not actually distinguish what law is from what law ought
to be because he does not actually go out into society and research how people
use the term ‘law’. Therefore he is not really performing any kind of
sociological research and thus his claim that law is social reality is
unproven. Hart is merely stating that law ought to be a social reality and
without proof of how the term ‘law’ is used his assertions can only be
normative.
Conversely, natural
law theorists tend to define law in a normative way. A good example is, the
founder of modern philosophy, Plato who devoted an entire series of books known
collectively as ‘The Republic’[16]
to explaining how the legal system would work in an ideal society. Plato argued
that the state should be run by philosopher kings who understand the forms and
can reflect them in the law of the land in order to make the perfect society.
The forms[17],
are immutable and unchanging, eternal versions of everyday objects and
concepts. In this way Plato focuses primarily on the normative nature of law by
deciding how the perfect legal system ought to function.
Section 2: Natural Legal Theory and
Positivist legal theory are engaged in fundamentally the same project and
solving the same problems
It can be argued
that both natural and positivist legal theories aim at defining the law. For example, the natural legal theorist
Fuller sees the basic purpose of law as a:
‘Collaborative and purposive
enterprise of placing human conduct under the governance of rules for the
purpose of establishing a framework for the peaceful interaction of persons’[18]
Fuller therefore
argues that when a rule is practically impossible to follow it is not a law.
This could be the case in situations such as that in Nazi Germany where secret
rules were left unpublished in order to allow high ranking Nazi soldiers to be
authorized to kill Jews[19]. Fuller
sees the process of making law as a very important part of making rules that
can rightfully be called law. He states in the allegory of Rex[20] that
there are desiderata that are minimal conditions but also aspirations for good
law. Fuller’s aim is to create requirements of valid laws that help to define
laws and a legal system that will be just and not tyrannical.
Hart also tries
to define law but makes a point of explaining that the law cannot be defined as
a term in itself. Using linguistic philosophy[21],
Hart explains that what law is must be defined with reference to the social
situations in which the term law is used and the context of the sentence it is
in. Whilst this goes some way to undermining the suggestion that positive and
natural law theories actually both try and define law because Hart suggests
that the term law cannot be defined generally and in itself, it is worth noting
that Hart is not denying the need to define law he just does so via a different
method to other legal positivists by insisting on the use of linguistic philosophy. Subsequently, Hart does not undermine the
view that both positivist and natural legal theories are the same ship both
sailing in search of a definition of law.
The final common
aim for natural and positivist law theories to mention is the importance that
both sets of theories place on justifying the authority of law.
Legal positivist
MacCormick[22]
justifies the authority of law by saying that the way in which the normative
order becomes institutionalised justifies the legal institutions as
authorities. MacCormick gives the example of a queue[23]arguing
that when a dispute erupts in a queue (for example about whether or not someone
can push in to the queue due to an emergency) the first way in which this normative
issue (ought one push into the queue?) is institutionalized is through someone
adjudicating the dispute between two people in the queue. Next someone in the
organisation where people are queuing is given standing authority to adjudicate
disputes between people in the queue. Finally, in order to assist that person
resolving disputes, and making sure that decisions are consistent, transparent norms
will be articulated (for example about conditions that must be fulfilled to
allow you to jump the queue). MacCormick argues that it is this process that
over time and through people obeying the judgements of the person adjudicating
disputes in the queue that the legal institutions gain authority.
From a natural law
perspective the authority of law is important and must be justified. Aquinas,
for example, argues that law should always be obeyed unless it will result in
scandal and thus the common good will no longer be pursued[24].
As mentioned above, Aquinas says that law must oblige the conscience and so law
that does not do this does not have the authority to be called law. Aquinas
understands the authority and justice of the law to come from laws that serve
the common good and not the purpose of the law makers, they must be within the
law makers’ powers and in line with divine goodness.
To summarise, it
is clear from looking at McCormick and Aquinas that both natural and positivist
legal theories recognize the need to justify the authority of the law. In this sense both sets of theories are aimed
at the answering the same question and are in opposition and cannot be
considered merely ships passing in the night.
Conclusions
To conclude,
positivist and natural law traditions are mainly concerned with the same questions
and so are more than just ships passing in the night. Although positivists
generally subscribe to the separation thesis and many natural law theorists
fall into the trap of the naturalistic fallacy, the common aim of the two
traditions is working out how law fits into the world we know, whether in
connection with morality or not. Positivists are keen to look at what law is
whilst natural law theorists focus on law as it ought to be, however, Hart’s
misguided use of the term sociology shows that positivism and natural legal
theories cannot be easily separated on this issue and so the theorists are
sailing the same ship. Both traditions aim to define law despite using a
variety of different methods and both place value on justifying the authority
of law and legal systems.
[1]
Separation thesis- http://plato.stanford.edu/entries/lawphil-nature/
accessed on 05/11/2014 at 19:11
[2]Penner,
Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths
2002) Chapter 4 Hart and Analytical Jurisprudence
[3] DeHart,
Uncovering the constitution’s moral
designs (University of Missouri Press 2007)
[4] Wacks,
Understanding Jurisprudence: An Introduction to Legal Theory (1st
edition Oxford University Press 2005) Soft Positivism p70-72
[5] Davies
and Stump, The Oxford Handbook of Aquinas (Oxford University Press 2012)
[6] Aquinas,
Summa Theologiae la IIae, q91, 1- The Various types of Law
[7]
Ibid
[8] Penner,
Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials
(Butterworths 2002) p 41-42
[9] Ibid
[11] Penner,
Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials
(Butterworths 2002) p 41 - 42
[12] Hume,
Treatise of Human Nature 1739, Book 3 part 1 Section 1
[13]
Hart, The Concept of Law (Third Edition, Oxford University Press 2012)
[14] Ibid
Chapter 1 – Persistent Questions p 13
[15]
Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal
Philosophy (second edition, Oxford University Press 2003) Sociological Drift p
90-92
[16]
Plato, The Republic, 360 BCE
[17] Welton,
Plato’s Forms: Varieties of Interpretation (Lexington Books 2002) The Forms as
Theory p 3
[18]
Fuller, The Morality of Law (Yale University Press 1964) p 30
[19] Lang,
An Act and Idea in Nazi Genocide (Syracuse University Press 2003) p 43
[20] Fuller,
The Morality of Law (Yale University Press 1964) p 33
[21] Cotterrell,
The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy
(second edition, Oxford University Press 2003) Hart’s Linguistic Empiricism
p83-87
[22]
McCormick, My Philosophy of Law, (Edinburgh University Press 1999)
[23] Ibid
p 138
[24] Penner, Schiff and Nobles, Jurisprudence and
Legal Theory: Commentary and Materials (Butterworths 2002) p42
