Understanding Legal Theories
Every system of law is guided by some idea of what law should be. At the most fundamental level, there are two primary approaches to how we think about the nature of law: legal positivism and natural law. Though they offer a contrasting view of what law is and what law is for, both have played a vital role in shaping the foundations of modern legal philosophy.
Legal positivism emerged beginning in the seventeenth century, gaining prominence in the eighteenth and nineteenth centuries. The emergence of legal positivism was in large part a repudiation of natural law thought, which at this time had dominated social and legal philosophy for centuries since at least the philosophers of Ancient Rome. Legal positivists generally subscribe to one of two lines of argument against the view that there is a connection between law and morality: First, that efforts to define law in terms of morality suffer from circular reasoning, with moral theories becoming secret laws; and second, that morality is merely an imprecise and poorly reasoned part of the valid law.
Natural law is by far the older of the two theories of law, traditionally dated to Aristotle, a student of Plato, who lived during the fourth century BC . Later in the third century AD, Natural Law found a new proponent in Stoicism, a school of philosophy that would eventually begin to fade in importance, but would leave behind a legacy in the legal and political systems of Europe and later the United States.
Legal positivism was largely the product of thinkers of the 17th through 19th centuries, when thinkers such as John Austin, Jeremy Bentham, and expectantly John Stuart Mill popularized and broadened its influence. As society changed with the expansion of industry, the emergence of more advanced industrialized states demanded more sophisticated answers regarding legal organization, and questions of politics and law became closely associated with philosophy. Hobbes, Bodin, Montesquieu, Blackstone, Kelsen, and Hart all contributed to the expanding understanding of positivism — Until the end of the 19th century, Natural law was in favor with many legal theorists across Europe. After World War II, Natural law once again gained prominence, with notable contributors including Hart, Dworkin, and Finnis. Today, both legal positivism and natural law theories are still debated in legal academia.
The Basis of Legal Positivism
Legal positivism is a school of thought that has been paramount in the development of legal philosophy. Advocates of legal positivism, known as positivists, have long argued that law is a collection of rules and norms that have been enacted by a recognized, authoritative source. They believe that legality does not depend on morality; rather, the existence and content of law are to be found in legal sources such as statutes, court decisions, and regulations. In other words, if a governmental body has enacted a rule and that rule has been promulgated and published in the appropriate manner, then it becomes a matter of fact whether or not the rule is morally "good," "bad," "fair," or "unfair." Instead, the fact that a rule has been put in place marks it as law. No additional legitimacy is required.
Legal positivism first came to be associated with John Austin in the early 19th century, although writers dating back to Ancient Rome noted similar landmarks in Western civilization. However, it was Jeremy Bentham, a contemporary of Austin, who became the most famous legal positivist. As a moral philosopher interested in social reform, Bentham sought to ground the law for laypeople. He believed that laws should be written in clear language and openly disseminated so that everyone could learn the law and abide by it. For Bentham, law was an empirical subject open to rational analysis, not a vague set of moral principles subject to personal interpretation. For about 50 years, Austin and Bentham dominated the thinking on positivist jurisprudence.
In the early 20th century, Professor H.L.A. Hart became the face of modern legal positivism. Hart greatly influenced legal thinkers like Ronald Dworkin and Joseph Raz. Finally, in the 1950’s the born again legal positivist came into being in the form of Professor and later Supreme Court Justice, Ronald Dworkin. The Dworkin/Austin contest on logic and morals would eventually lead to what we now call legal realism.
Principles of Natural Law
At its core, natural law theory is a moral theory. The Greek philosopher Aristotle first proposed how the universe had a rational or "natural purpose." This view conflicted with the religious views at the time that described the earth as being constantly subject to the whims of capricious gods. The idea of natural law, and the evolution of the theory, describes the notion that there are rational principles in nature that can be used to guide people through the world as opposed to relying solely on the vagrant principles of a creator. Other early philosophers such as Plato, Cicero, and Aquinas all expounded on natural law, developing the theory over centuries to include modern elements rejected by many.
To most natural law theorists today, the rationalism of natural law has not been rejected. Therefore, any law that does not pass that test as to whether it could have been derived from reason is not law and constitutes a moral obligation to disobey. Natural law theories generally fall into the three categories identified by John Finnis: devoted to the inner harmony of nature, devoted to the goodness of human nature, or a view of the whole which includes human beings but encompasses more than them.
Finnis and other legal philosophers see natural law as defining a rational basis that links law and morality, or natural right (the good) and legal right (the just). Most theorists agree that natural law tells us that some or all moral truths must be reflected in law for it to have justification or legitimacy. What exactly the connection is between the concepts of the good and the just has been suggested in various ways by natural law theorists and has been a frequent battleground.
Natural law has also been challenged from various perspectives, including positivist and other proponents of moral relativism. The difficulty in reconciling natural law theory with other legal theories at the time of the Enlightenment prompted some to question the idea of moral truth. This is a dichotomy still often discussed in legal academia, where natural law includes the idea of moral or objective truth, whereas positivism denies such a connection.
But the new focus of natural law has discussed whether moral reasoning can develop common standards for positive law or if an objective morality must co-exist with concepts of legitimate authority. Many of the framers of the U.S. Constitution certainly were influenced by natural law and offered references to it in fairness documents, including the Declaration of Independence. The United States Constitution explicitly refers to God once in the First Amendment, but self-evident truths can be clearly identified in other provisions.
Comparison of Positivism and Natural Law
A stark contrast appears between legal positivism and natural law when it comes to each perspective’s view of the nature of law or its role in society. Natural law holds that in order to be effective law, the law must reflect the natural order or a universality amongst human beings. Legal positivism on the other hand, believes that the law reflects the authority making the law itself and that the law is meant to maintain order, not necessarily a morality.
For example, both perspectives agree that the legislators of the legislative process possesses the authority to create and enact laws, but where the two differ is what the law is meant to achieve. Natural law holds that the law promotes a sense of justice where as legal positivism argues that the law is only meant to maintain order. From the natural law perspective the legislature has the authority to create the law and is responsible for enacting just laws where as legal positivism views the role of the legislature to being necessary in order to maintain order within a society.
The differences between the two perspectives extend into how legal interpretation occurs. While both sides accept a literal interpretation of the written text of legislation, further interpretation is where the two diverge. Natural law, as mentioned before, interprets and infers purpose for the law, where as legal positivism primarily looks at the text. Legal positivism can infer intent, but it does not delve as deeply as the natural law perspective, as it is satisfied with the letter of the law and almost views purpose as irrelevant to enforcement.
Effects on Contemporary Legal Systems
Legal positivism and natural law have a substantial impact on contemporary legal systems worldwide, shaping how laws are created, enforced, and interpreted. Although these philosophies tend not to be explicitly recognized or referenced in most legislative frameworks and judicial decisions, their influence can be observed throughout modern legal institutions.
In many countries, lawmaking bodies tend towards legal positivism, as national sovereignty and legislation by the people or representatives are seen as standards for a democracy. Consequently, laws drafted and passed by those legislators are typically considered valid. Even if they contradict moral standards or common ethical beliefs, courts are often reluctant to intervene by declaring such laws unconstitutional. This observation is frequently leveled against the United States Supreme Court for its willingness to overrule legislation that violates the Constitution, such as the Defense of Marriage Act (DOMA). Legal positivism also carries the potential to facilitate or diminish democratic processes by legitimizing undemocratic practices such as gerrymandering, where district boundaries benefit specific political groups.
Legal positivist rulings that rely upon the law’s sole legitimacy characterizes many judicial decisions, echoing legislative actions creating the law in the first place and emphasizing the necessity of enacting laws per the rule of law. Jurisprudential positivism , the application of legal positivism through judicial processes, remains a defining characteristic of American jurisprudence today. While some litigants and scholars arguably favor jurisprudential positivism, Southern Methodist University professor Scott Fruehwald notes an emergence of critical legal positivism that better engages with competing legal theories and philosophical perspectives. Although jurisprudential positivism provides strict judicial application of law, some legal scholars and practitioners critique this perspective, arguing it tends toward excessive rigidity and inattention to competing theories and philosophies.
Legal education has been heavily influenced by the philosophy of legal positivism, as the American Bar Association encourages law schools to adopt a strictly scientific approach to teaching the law, focusing on observable, objective legal rules and leaving no space for competing theories or philosophies. However, this strict positivist-oriented approach toward legal education has decreased in the past couple of decades. In recent years, law schools have adopted an interdisciplinary approach that, in part, supports critical legal studies by creating more space for competing philosophies, theories, and invitations to analyze whether there are underlying senses of justice and considerations of morality in a legal system.
Support and Criticism: Current Discourse
Legal positivism has been subject to rigorous critique, with some arguing that it fails to account for the role of morality in legal interpretation. Critics say that because it upholds that law is separate from morality, it can lead to decisions that, for instance, uphold morally unjust laws. For example, a legal positivist might argue that as long as a law was passed through a legitimate process, it is legally binding, even if its content is considered by society to be immoral or unjust.
Natural Law theory counters that the law cannot exist in a moral vacuum. Without a higher moral order to guide it, it is susceptible to abuse. If all decisions are merely legislated and adjudicated based on man-made laws, as a legal positivist would have it, then there is nothing to prevent a rogue state from passing laws that legalise oppression or discrimination.
By emphasising the distinction between law and morality, legal positivism has also been accused of being disingenuous, its critics claim. It has been said that because humans are moral creatures, that it is impossible for them to decide based on anything else but morality. A juror, for example, may deliberate purely based on the facts of a case. Yet, even to the most rational of minds, a decision based on the facts of the law excludes ethical considerations about a defendant’s mental health or circumstances. As such, a jury may end up exercising its own moral judgement on a defendant’s behaviour rather than solely relying on the law, critics say.
Supporters of legal positivism argue that the theory does account for morality in its emphasis on the importance of democratically-legislated positive laws as the predictors of behaviour. For legal positivism, because it is necessarily based on consensus, positive as opposed to natural law is perhaps the most democratic form of law and therefore worthy of moral weight as a legislative expression of the will of the people.
Discussions surrounding positive and natural law have been relevant since ancient times. Whether Socrates, Aristotle, Cicero or Aquinas, each of these ancient philosophers have embedded into their works the distinctions between positive legislation, natural justice and the roles of citizens within society. In modern terms, theories without one without the other leave out core aspects of the law. Without both, we cannot hope for an ideal legal system.
Numerous other modern theories have sought to refine the work of earlier theorists. The doctrines of originalism, textualism, critical race theory and feminist jurisprudence have emerged as contemporary approaches that are still grounded in the key principles of natural law and legal positivism. They demonstrate that debates over these two cornerstone doctrines of jurisprudence remain important and pertinent for developing a just and fair legal system.
Conclusion: From Theory to Application
It is essential for practitioners and students of legal philosophy to understand where their own thought derives from, as these schools of thought guide modern jurisprudence. Whether a natural lawyer of a positivist, the lawyer must take into consideration the underlying beliefs and the analysis that has defined the body of law in their country in order to understand a solution.
When a judge reports his decision to the public, he is doing exactly this when he explains why he has come to a particular conclusion. The currently recognized schools of jurisprudence do not have to be chosen so much by the lawyer so much as the lawyer needs to understand where the fundamental roots of decisions have come so that he knows how and why such decisions have been made and where the law stands currently. Without this understanding , a lawyer would neither be able to make any predictions about future decisions or even distinguish the law as it stands in his own country from another’s.
In practice, these two schools are the most commonly employed by lawyers today. Both positivist and natural law theorists can work well side by side in legal practice. It is the lawyer’s job that both positivist and natural law theorists must concern themselves with: to apply the law of the land as it stands to a client’s situation. A natural lawyer and a positivist will both do the same job—keep their minds, however, on different motivations.