What makes the law legitimate? What is a legitimate source of law? What
binds people to obey the law? Is there an essential connection between the law
and morality? Can the content of a law disqualify it from being considered a
legitimate law, which must be obeyed? This debate has been taken up by two
major groups of legal theorists:
Natural law
Natural law theory is a philosophical and legal belief that all humans
are governed by basic innate laws, or laws of nature, which are separate and
distinct from laws which are legislated.
Natural law’s content is set by nature it therefore has validity
everywhere .i.e. universal. The laws arise through the use of reason to analyze
human nature and deducing binding rules of moral behavior. This theory is built
on the idea of perfect law based on equity, fairness, and reason, by which all
man-made laws are to be measured and to which they must (as closely as
possible) conform.
Natural law theory has heavily influenced the laws and governments of
many nations, including England (Magna Carta 1215) and the United States
(Declaration of Independence 1776). It has also informed the publications of
international legal instruments like the Universal Declaration of Human Rights
(1948) and African Charter on Human Rights (1981).
Positive law
Positive law is law made by human beings. Specifically, positive law may
be characterized as law actually and specifically enacted or adopted by proper
authority for the government of an organized society. A body of man-made laws
consisting of codes, regulations, and statutes enacted or imposed within a
political entity such as a state or nation.
According to the legal positivists, law is only positive law; that is
statute law and such customary laws as recognized by the state. positivism
characterizes as law to be applied by the judges, and alone to be considered by
jurisprudence, those norms only which are enacted as such by the
Positive law sets the standards for acts that are required as well as
those that are prohibited and penalties are usually prescribed for violation of
positive law. Those who are physically present where the positive laws have
governing power are typically required to obey such laws.
The Contrast
Natural Law theorists such as
Plato, Aristotle, and St. Thomas Aquinas argue
that a law is only just and legitimate
if it promotes the common good. For
Legal Positivists like John
Austin, H.L.A Hart, and Thomas
Hobbes, a law is legitimate if it has been enacted through the proper channels
by someone with the power to do so regardless of the content of that law. While each theorist presents his own explanation, each seeks to answer
these crucial questions about law
and society.
Legitimate laws must come from legitimate sources. Legal Positivists argue that for the source of law to be legitimate, it must come from a source of power. For
Austin, the source of law must be
the only person who the subjects are in the habit of obeying. They must also be
willing to back their sanctions and laws with credible force. Natural Law theorists posit that the source of law is divine or can be
discovered and formed according to what is just and will
promote the common good. Aquinas takes the stance that the
source of divine law is God.
Human laws are derived from these
divine laws and practical reason.
Natural Law theorist St. Thomas
Aquinas argues that human law is legitimate only if it is in line with divine
law and promotes universal happiness. All law
is fashioned to the common welfare
of men. He posits that neglecting God’s law or the universal happiness in the
formation of a law makes it unjust. Accordingly, Aquinas advances that an
unjust law is not a legitimate law at all and does not have to be obeyed. In
stark contrast, Legal Positivist John
Austin contends that legitimate law
is nothing more than commands from a sovereign to the people who must obey him
backed by credible threats and sanctions. The law’s legitimacy is
Once legitimate sources have created legitimate and just laws, there
must be a reason as to
why people are compelled to follow or obey them. Natural Law subscribers
believe that the
ultimate end is the greater good
and law is ordered to serve the wellbeing of man. Good laws
should be followed because they
follow reason and are inherently valuable and are a means to the ultimate human
end. Additionally, they argue that man
was given reason, which distinguishes
him from beasts. It is this reason, which allows him to control his actions and
impulses to act justly. Acting justly and virtuously leads to the good life and
the ultimate happiness. Opposite these
thinkers is Austin. He believes that people are obedient to the
letter of the law because if they
do not then they will be punished with force. Fear becomes a motivator for
obedience for both Austin and Hobbes.
Summary
Natural law is typically based on moral principles, natural order, and
ethical code that people share as human beings. It is inherent and may not
require government enforcement. On the other hand positive law is the legal
rules that people are typically expected to follow; it is artificial order and
consists of rules of conduct that people place upon each other. Legal
positivists are of the view that for a law to be valid, it should be codified,
or written down, and recognized by some type of government authority. They
reject the theory that people will obey inherent law based on moral values.
Positivists espouse relativism and subjectivism with respect to what is proper
or improper. Natural law opposes the idea that moral law is relative,
subjective, and changeable.
jurisprudence
[1]
1Dworkin,
Ronald M., “Lord Devlin and the Enforcement of Morals”(1966). Faculty
ScholarshipSeries .
Paper 3611’ Yale Law School.
