Natural law vs legal positivism

Labelling cultural traditions is always a difficult task. It is even more so in the case of a
comprehensive theoretical approach such as that of legal positivism to which many different
doctrines are assumed to belong. Considering how broad the definition of legal positivism has
become, given the large varieties of historical and cultural contexts in which it has flourished, it
is possible to say that legal positivism is an essentially contested concept. It is a notion that is
likely to be interpreted in quite different ways, even if it has a conceptual core which is
commonly agreed upon. If we look at ordinary usage the first approach to the notion of legal
positivism seems to refer to what legal positivism is not: legal positivism is often defined as a
doctrine that is in radical and polemical contradiction to natural law theories. Legal
positivism, as opposed to natural law theories, assumes that there is no other law but positive
law: the existence or more technically the validity of law rests upon the mere fact of its
being enacted by a historically determined human legislator (or norm-issuer in a broad sense):
ius quia iussum.1 The concept of natural law could be identied with the thesis that the validity
of positive law (i.e. the law posited by human beings) depends on its substantial conformity to a
higher law, which is the expression of absolute values of justice belonging to the nature (of
things, of human beings,)This simple definition embodies two important points for this
preliminary discussion. First, if we look at legal positivism and natural law as two definite
theories (or clusters of theories), we can notice that the former arise in a determined
historical period as a reaction to the latter. In this sense, the above mentioned definition tells us
an elementary truth, that in a certain moment of the history of legal culture and legal institutions
(namely, the Enlightenment and the rise of the modern concept of state), a cluster of theories
revolts against another cluster of theories which were prevailing till then.

Second, its possible to consider both legal positivism and natural law not as two specific
theories, but as two general and fundamental attitudes towards the law. In this respect, the
opposition between legal positivism and natural law seems to characterise the entire history of
western legal thought: even in Greek and Latin legal thought we can find important examples of
the antithesis between natural law and positive law, which, without necessarely being precise and

1 M. Villey, Law in Things, in Controversies about Laws Ontology, ed.by P.

Amselek and N. MacCormick (Edinburgh: Edinburgh U.P., 1991), pp. 212
articulated doctrines within specific cultural contexts, represent two fundamentally different
attitudes relevant to appraisal of the law, by jurists and citizen. In either case, it is possible to say
that between legal positivism and natural law there is a conceptual antithesis: these theories (or
clusters of theories) are absolutely irreconcilable, because they are respectively based upon
two different concepts of law.2The concept of law presupposed by legal positivism could be
recognised in the assumption that the existence of laws is not dependent on their satisfying any
particular moral values of universal application to all legal systems; the existence of laws
depends then upon their being established through decisions of human beings in society. 3On
the other hand, if the distinction between legal positivism and natural law is a conceptual one,
then its not possible for a single doctrine to belong to both of them at the same time: they are
mutually exclusive. In other words, if one is to reject legal positivism, is one compelled to adopt
a natural law standpoint? This last question is closely related to our present concern. In
contemporary debate, indeed, the main criticisms levelled against legal positivism come from
scholars that reject the natural law label. Natural law, they seem to suggest, has somehow
exhausted its historical function, which was to prescribe certain substantial restraints to the
production and interpretation of law. Nowadays those very restraints, the argument continues,
meet in actual laws, such as contemporary constitutions, and it is from the constitutional point
of view that legal positivism has to be criticised. Obviously enough, we need now a more precise
definition of both legal positivism and constitutionalism (and the constitutional state). In fact, if
on the one hand we were to reduce all legal positivism to the conceptual definition given above
and, on the other hand, identify constitutionalism with the bare existence of a constitution in the
legal system, our enquiry would end abruptly with the conclusion that constitutions (especially
written ones) are actually positive law, established as such by human beings, and legal positivism
is not at all affected by their existence. There must be something more. We need to move then
from the concept of law assumed by legal positivism, to more specific and articulated positivist

2 H. Kelsen, General Theory of Law and State (Cambridge MA: Harvard U.P., 1945), Appendix.

3 K. Fer, Farewell to Legal Positivism: The Separation Thesis Unravelling, in The Autonomy of Law.
Essays on Legal Positivism, ed. by R.George (Oxford: Clarendon, 1996), pp. 119162.
conceptions, which are supposedly seriously compromised by the existence of the constitutional
state.

LEGAL POSITIVISM vs. NATURAL LAW THEORY

There are two natural law theories about two different things: i) a natural law theory of
morality, or whats right and wrong, and ii) a natural law theory of positive law, or whats legal
and illegal. The two theories are independent of each other: its perfectly consistent to accept one
but reject the other. Legal positivism claims that ii) is false. Legal positivism and the natural law
theory of positive law are rival views about what is law and what is its relation to
justice/morality. Natural Law Theory of Morality i) Even things which are not man-made (e.g.
plants, rocks, planets, and people) have purposes or functions, and the good for any thing is the
realization of its purpose or function. ii) The good for us human beings is happiness, the living of
a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature,
what we by nature do best. That involves the development and exercise of our capacities for
rationality, abstract knowledge, deliberative choice, imagination, friendship, social cooperation
based on a sense of justice, etc. The moral virtues (e.g. courage, justice, benevolence,
temperance) are character traits that help us fulfill our true nature. The life of the heroin addict or
of the carnal hedonist is not a good one, because it is inconsistent with our natural function.

Natural law is the set of truths about morality and justice; they are rules that we must follow in
order to lead a good or flourishing life. We can know what these principles are by means of
unaided human reason. [The natural law theory of morality rejects ethical subjectivism (right
and wrong are all a matter of opinion) and affirms ethical objectivism (some moral opinions
are more valid, reasonable, or likely to be true than others)]. Immoral acts violate natural law.
Hence, immoral behavior is unnatural (in the sense of contrary to our function, not nowhere
to be found in the natural world), whereas virtuous behavior is natural. For example, lying is
unnatural, Aquinas holds, because the function of speech is to communicate to others what is in
our minds. When we use words to mislead others, we are using them contrary to their proper
function. Natural Law Theory of Law Legal systems have a functionto secure justice. Grossly
unjust laws (e.g. White people may own Black people as slaves, women may not own
property or vote) are not really laws at all, but a perversion of law or mere violence. As St.
Augustine put it, lex injustia non est lex. Aquinass way of stating this point: positive law has as
its purpose the common good of the community. Any positive law which conflicts/is inconsistent
with either natural law or divine law is not really law at all. Hence, not only is there no moral
obligation to obey it, but there is no legal obligation to obey it, either. Augustine, Aquinas, and
Martin Luther King are supporters of this view.

Lon Fuller argued there is some necessary overlap between legality and justice, because its
impossible to have a legal system without fidelity to the rule of law and formal justice. (Fuller
would probably have cited Iraq under Saddam Hussein as a good example of a society that
violated the rule of law so much that it really had no genuine legal system at all). But Fuller does
not go as far as Augustine or Aquinas, because he admits that a society can have a genuine legal
system that satisfies the demands of formal justice (like cases must be treated alike) yet still
have particular laws that are unjust. In such a society, judges are independent of the other
branches of government and decide cases on their merits, the society honors the principles no
punishment without a crime and no crime without a pre-existing, public law, the accused
receives a fair trial with due process of law, etc. But still, some of the laws that are consistently
and fairly enforced are unjust (e.g. women may not own property or vote). Ronald Dworkin,
defends a view of legal interpretation (by judges) that he claims is in the tradition of the natural
law theory of positive law. Dworkin argues it is proper for Supreme Court justices to interpret the
Constitution in light of the correct principles of justice that our country tries to honor.

Legal Positivism whether a certain rule is a law, creating legal obligations to comply with it,
all depends on its source. Valid laws are simply rules that come from certain people (kings, city
councils, etc.), in accordance with certain procedures, that the society enforces. A rule can be a
genuine, valid law even though it is grossly unjust. According to H.L.A. Hart, a contemporary
legal positivist, the essence of legal positivism is the separation thesis.

Separation thesis: having a legal right to do x doesnt entail having a moral right to do it, and
vice versa; having a legal obligation to do something doesnt entail having a moral right to do it,
and vice versa; having a legal justification to do something doesnt entail having a moral
justification, and vice versa; etc. In order to know what your legal rights are, you need to look at
what laws your society has. In order to know what your moral rights are, you need to figure out
what is the true morality. You might have legal rights that the true morality says you shouldnt
have (e.g. the right to own slaves), and your society might deny you legal rights that the true
morality says you should have (e.g. the right to be free, to own ones own body and labor power).
-- Some of the most influential defenders of legal positivism are the 19th century philosophers
John Austin and Jeremy Bentham, and the 20th century legal philosopher H.L.A. Hart.

Some terminology from Aquinas and Austin

Aquinas distinguishes four types of lawhuman, divine, eternal, and naturalas follows:

Human lawan ordinance of reason for the common good promulgated by him who has the
care of the community.

Eternal law Gods plan for all of creation.

Natural lawThe part of eternal law that applies to human beings; it is Gods plan for us.
Natural law can be discerned by unaided human reason, and it consists in the correct moral
principles. E.g. it is never permissible intentionally to kill an innocent human being, and one
must never intend what is evil, even as a means to achieving a good or avoiding a bad result are
natural laws, in Aquinass view.

Divine lawthe part of eternal law that God reveals to us human beings via Scripture. If
something is against natural law, then its against divine law too.

But some things, primarily of a religious nature, are contrary to divine law but not natural law.
For example, natural reason and natural law tell us that the God of traditional theism exists and
should be venerated. But it is only through divine revelation that we can know that baptism,
membership in the Christian church, etc. are necessary for our salvation. Aquinas insists that
human laws are genuine laws only if they do not contradict either natural or divine law.

Austins definition of law is a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him. There are two kinds of law: positive law (rules
commanded by political superiors to their inferiors) and divine law (rules that God commands all
human beings to follow). All laws are commands, which Austin defines as an expression of a
wish by someone who has the willingness and ability to enforce compliance. (If you cannot or
will not harm me in case I comply not with your wish, the expression of your wish is not a
command.) Unlike Aquinas, Austin does not distinguish divine and natural law. Austin assumes
that Gods commands to us are the true morality. Austin distinguishes divine law/the true
morality from positive morality, or the beliefs about whats right/wrong, just/unjust that are
held by the majority of people in some society. The positive morality of our society is correct
insofar as it coincides with divine law and incorrect insofar as it deviates from it. Its worth
noting that Austin had an unorthodox view of the content of divine law. Austin believed that God
commands us to be utility maximizers, making utilitarianism the true morality. Positive laws are
commanded by political superiors. Austin calls these superiors the sovereign, and he defines
sovereign as the person or persons who are not in the habit of obeying anyone else, and whom
everyone else is in the habit of obeying. Positive laws are general commands by people who
themselves are not bound by them, and who can enforce obedience from everyone else.

The idea that the sovereign is above the law is one that Austin shares with the 17th century
political philosopher Thomas Hobbes. Austin, then, defends two ideas:

i) the command theory of law, and

ii) the separation thesis.

Its perfectly consistent to think that the separation thesis is true, but the command theory is
false. Thats precisely what H.L.A. Hart believes. Some objections to Austins command theory:
To have legal authority to make law, for Austin, is simply a matter of being able to impose ones
will on everyone else. Now suppose that Dr. Evil invents shields/force fields that protect him
from any attack, as well as horrible weapons that he can use against anyone he wants. Suppose
he threatens to use his weapons on me unless I pee on the weeds in his front lawn. Do I have a
legal duty to do this? Surely not. But Austins command theory says that I do. As H.L.A. Hart
puts the point, Austins theory confuses being obligated with being obliged. obliged is to be
forced to do something while obligated term denotes there are rules which require that one do
something. If an armed robber demands your money or your life, then you are obliged to hand
over the money, but you have no obligation (of any sort) to hand it over.Plenty of countries have
laws, without having a sovereign in Austins sense.

In constitutional democracies, government has limited powers and is accountable to the people
in elections. The President of the U.S., the Prime Minister of Great Britain, etc. are not above
the law, and thus, are not sovereigns. -- Hart: Austins command theory of law may have
some plausibility if one focuses on criminal law (where people who break the rules are subject to
punishment), but it has much less if one considers other bodies of law, such as contract law or
tort law. If I fail to fulfill the requirements for a valid will (e.g. I have it witnessed and signed by
only one person, not the two required by law), the state doesnt punish me. It simply deems the
will void and refuses to carry out whatever wishes I express in it about who inherits by estate.
Austins command theory doesnt work for international law, because there is no international
sovereign, that is, no entity with the power to force all countries to obey international law.

In contrast to natural law, positive law is morally arbitrary or indifferent. Following the no
necessary connection thesis, modern legal positivists also strongly distinguish the validity of
law from claims about objective moral truth. Some (exclusive) legal positivists argue that legal
validity necessarily excludes appeals to moral truth while other (inclusive) positivists argue that
some legal systems (in particular, the American) permit appeals to moral truth in the finding of
law (Waluchow: 1994). Lon Fuller (1964) argued against the legal positivists that law
necessarily embodies some procedural principles that are moral in content: he is sometimes
called a procedural natural law theorist. Ronald Dworkin (1986) argued against the legal
positivists by asserting that law includes general principles that can be indentified and deployed
only by means of moral argument by judges.4

Critics say that what many legal positivists fail to note is that there are several sound natural-law
reasons for the positivity of law. Pure moral norms (you shall not kill the innocent) are too
vague and open-ended to serve as reliable guides for human conduct. So natural law shows us
why it is morally necessary for law to be largely morally indifferent in content. Similarly, many
legal positivists, such as Raz, argue that we must be able to identify legal norms without recourse
to moral argument, because the point of a legal system is to provide a framework for social
interaction in contexts precisely where there is no agreement about moral principles.5

Here again, we can see that there are good moral reasons for insisting on objective criteria for
identifying valid legal norms, if we hope to sustain a legal order that can be respected by citizens

4 Dworkin, Ronald. 1978. The Model of Rules in Taking Rights Seriously.

Cambridge: Harvard University Press.

5 Raz, Joseph. 1986. The Purity of the Pure Theory in Essays on Kelsen. Ed.
Richard Tur and William Twining. Oxford: Clarendon Press.
of widely divergent moral views. In short, say natural law theorists, over a wide range of legal
norms and institutions, the requirements for valid law identified by legal positivists are not only
compatible with, but also find their deepest justification in, natural law theory.6Let us now return
to the question of what legal positivism has in common with Comtean positivism. Positivism
has become a major approach to the scientific study of law understood as an empirical science of
legal behavior, but does the positivist science of law have any relation other than merely verbal
to contemporary legal positivism as just described? Scientific positivists since Ernst Mach have
often asserted that the aim of science is not description or even explanation but prediction. For
example, Milton Friedman (1953) famously argued that positivism in economic science means
that economics seeks to predict behavior, not to describe or explain it. O. W. Holmes, Jr. (1897),
who is often described as a legal positivist, sounds quite Comtean: The object of our study,
then, is prediction, the prediction of the incidence of the public force through the instrumentality
of the courts. 7 Brian Leiter argues that the legal realists were positivists in two very different
senses: first, they accept the sources thesis of legal positivism; and second, they pioneered a
scientific positivism by attempting to identify the ideological or psychological factors that best
predict the decisions of appellate judges.8 In short, the true legal positivists (in the Comtean
sense) are the myriad social scientists seeking to predict and sometimes explain the behavior of
citizens and legal officials; the conceptual analysis and normative arguments of todays legal
positivists has little if anything in common with such positivism. Just as Finnis regrets the
moniker of natural law for his normative account of law, so many of todays legal theorists
might come to regret the equally misleading implications of their positivism9.

6 Finnis, John. 1996. The Truth in Legal Positivism. In The Autonomy of Law. Ed.
Robert P. George. Oxford: Clarendon Press.

7 Holmes, O. W. 1897. The Path of the Law. In 10 Harvard Law Review 457.

8 Leiter, Brian. 2001. Legal Realism and Legal Positivism Reconsidered in Ethics
111 (January): 278-301

9 Finnis, John. 1996. The Truth in Legal Positivism. In The Autonomy of Law. Ed.
Robert P. George. Oxford: Clarendon Press.
Kelsen's final positions cannot be written off as eccentricities, of merely biographical interest.
Still, the legal positivism-sometimes called "exclusive legal posiivism"-defended today by legal
philosophers such as Joseph Raz, is very different. While affirming that all law is based upon and
validated by social-fact sources-the affirnation which makes it exclusive legal positivism-it
accepts also that judges can and not rarely do have a legal and moral obligation to include in
their judicial reasoning principles and norms which are applicable because, although not legally
valid (because not hitherto posited by any social-fact source), they are, or are taken by the judge
in question to be, morally true. Classical natural law theory does not reject the theses that what
has been posited is positive and what has not been posited is not positive. (Indeed, the very term
"positive law" is one imported into philosophy by Aquinas, who was also the first to propose that
the whole law of a political community may be considered philosophically as positive law.10)

10 John Finnis, The Truth in Legal Positivism, in the Autonomy of Law 195-214
(Robert P. George ed., 1996).