Chapter 4

Natural Law and Positivism

4.1 Introduction
4.2 Rule of Law
4.3 Justice
4.4 Impact
4.5 Reconciliation

Men at some time are masters of their fates:

The fault, dear Brutus, is not in out stars,
But in our selves that we are underlings.1

4.1 Introduction
Kings will be tyrants from policy, when subjects are rebels from principle.2
Natural law and positivism are in stark contract. Natural law emphasises law
based on principles and conferring rights, while positivism focuses on law as
choice grounded in policy. For positivism, the law is the law. For natural law,
the law is just or it is not a law at all. Because natural law and positivism are
so contrasting, and have been so influential in our legal system, a comparison
between them will be rewarding.

4.2 Rule of Law

[L]aw is most needed when it stands against popular attitudes sometimes
engendered by those with power and when it protects the unpopular against
the clamour of the multitude.3
Tension between natural law and positivist views of law is felt in the rule of
law. The rules of law is an ideal, and also in a fundamental way a doctrine of
common law legal systems. It starts with two propositions about government.
Government is necessary if people are to live in society, but there is nothing
inevitable about the type of government that people have. Governments can
be described and typed in several ways but, from the point of view of human
welfare the most fundamental distinction is between two types of government,
dictatorship and constitutional government according to the rule of law.

1 William Shakespeare Julius Caesar 1.ii 146

2 Edmund Burke Letters to a Member of the National Assembly 1791
3 The Honourable Sir Gerard Brennan, Chief Justice of the High Court of
Australia, on the occasion of his swearing in as Chief Justice, 21 April 1995, Sydney
Morning Herald, 22 April 1995.
45
46 Chapter 4 Natural Law and Positivism

Realistically these are two extremes on a continuum, but for convenience we

can treat them as two distinct types to make our point.

A dictator typically has absolute or unlimited power. His word is law. There
is no limit to his power and no restraint on the way in which it is exercised.
By contrast constitutional government is government according to rules laid
down in a constitution. A constitution imposed limits on government power.
This is the rule of law which is a fundamental principle of constitutional
government. It has three propositions.

Proposition 1
Proposition 1 is that a government can only do those things that the
constitution authorises it to do (a substantive restraint on power) and can only
do them in the manner authorised by the constitution (a procedural restraint
on power). Thus the constitution restrains the power of a government both at
to substance and procedure. This is the natural law strand of the rule of law.

Since a government can only do what the constitution authorises it to do, it

cannot arrest, search, detain or punish a citizen, or deprive them of life, liberty
or property, unless there is a law that allows the government to do it. A classic
example is the case of Entick v Carrington.4 These are the facts. The plaintiff
occupied a house. The defendant, who was a government official, broke and
entered the plaintiff's house and seized his papers. The plaintiff brought an
action against the defendant for trespass. (Trespass consists of an invasion by
the defendant of property occupied by the plaintiff.) In this case the defendant
tried to argue that his action was not a trespass because he was justified in
doing it by a general warrant from the Secretary of State ordering a search of
the plaintiff, his books and his papers, and ordering those books and papers to
be brought before the Secretary to be examined. In principle, there is no
reason why a defendant cannot raise some justification to what would
otherwise be a trespass alleging by he had a right to do what he did, either by
statute or at common law. But in this case the court made an exhaustive
examination of the authorities and could find no foundation in either statute or
common law which would justify an invasion such as the defendant's. And,
quite specifically, the court rejected the defendant's contention that he was
justified by the long standing and unquestioned practice of the Secretary of
State in issuing general warrants. The court also rejected the notion that state
necessity of itself might be a justification, and asserted vigorously that any
justification there was must exist in statute or at common law.

4 Entick v Carrington (1765) 19 St Tr 1030

 Chapter 4 Natural Law and Positivism 47

This part of the rule of law has a very practical operation. If the government
does something - for example, a parliament makes a statute, a court decides a
case, an official in the executive government makes a decision and takes
action to implement the decision - there must be legal authority for what is
done. Put simply, (i) there must be provisions in the constitution which
authorise the action, (ii) there must not be provisions in the constitution which
forbid or prohibit the action, and (iii) the parliament, court or official must
have complied with any procedures laid down for doing what they did.

This rule, that a government can only do what it is authorised to do, contrasts
with the fundamental principle that applies to a citizen. A citizen can do
anything that is not forbidden.5 In this way the power of government is
contained and the liberty of the citizen is enhanced.

Proposition 2
While government can only do what the constitution allows to do, within
these bounds it can do as it wishes. This it the positivist strand of the rules of
law. As the popular saying puts it, “the law is the law.” This attitude is also
reflected in what lawyers sometimes say to a client who has lost a case that
they deserved to win: “Do not confuse law with justice.”

Proposition 3
Proposition 3 is an attempt to mitigate the problems with Proposition 2. It is
little consolation to be ruled by law if the law is unjust. Therefore the rule of
law is expanded to return some of the moral content lost by Proposition 2.

First, a substantive restraint on law is urged, a restraint on the content of laws.

Laws must be fair. In particular laws should protect and not interfere with the
liberty of the citizen unless there is some compelling reason to do so.6 For
example, we should have freedom of speech, but a good reason to limit this
freedom is the need to prevent one person making vilifying or insulting
remarks to another person that may cause distress to the person, cause other
people to think less of the second person or provoke a violent response.

5 In R v Boulton; Ex parte Beane (1987) 70 ALR 225 the High Court stressed that
in the absence of statutory provisions, a person in Australia who has not breached
Australian law is entitled to his freedom. As Brennan J went on to say, in
consequence the court interprets a statute and a statutory instrument if possible to
respect the right of personal liberty.
6 As Justice Deane said in R v Bolton; Ex parte Beane (1987) 70 ALR 225, 235-
236: "The right of liberty is a precious right entitled to protection."
48 Chapter 4 Natural Law and Positivism

Second, a procedural restrain is urged. A person should not be subject to the

operation of the law without due process. That is, there must be fair
procedures for inquiry before a person suffers consequences of the law. For
example, it is not fair to put a man in jail for murder just because the police
think that he has committed murder. Instead, a person can only be convicted
of a criminal offence such as murder after a proper trial where the prosecution
has to observe fair procedures in presenting evidence and arguing its case.
This idea of due process is at least as old as Magna Charta. Clause 39 of
Magna Charta says: Nisi per legale iudicium parium suorum vel per legem
terra - no man shall be punished except by the legal judgment of his equals
and the law of the land. Later constitutional documents echo this. For
example, the fifth amendment to the United States Constitution provides that
no person shall be “deprived of life, liberty, or property, without due process
of law.” In a similar vein, Article 10 of the United Nations Universal
Declaration of Human Rights (1948) provides as follows: “Everyone is
entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and any
criminal charges against him.”

4.3 Justice
One distinction between the two philosophies is their attitude to justice. This
rests on or is manifest in the "is/ought" dichotomy. Positivism is an "is"
philosophy. Law is simply the laws laid down by the sovereign. The law is
the law and that is the end of the matter. Natural law on the other hand is an
"ought" philosophy. Law is not anything the sovereign lays down or
commands. It is only those commands which conform to the standards of
reason and justice imposed by natural law, that are truly the law.

Thus for natural law, law can only be what it ought to be. This approach is
reflected in statements by judges and writers. Law, they say, should be
founded on morality,7 “justice,”8 “fundamental principles of justice,”9 “natural
justice,”10 fairness,11 the “guiding rules of right,”12 a “sense of legal right,”13
equity,14 and the fundamental principles which “underlie a parliamentary

7 Donoghue v Stevenson [1932] AC 562 at 580, Honoré “The Dependence on

Morality of Law” (1993), Wilson v Glossop (1888) 20 QBD 354 per Fry LJ.
8 National Bank of Greece v Metliss [1958] AC 509 at 525.
9 Robinson v Continental Insurance Co [1915] 1 KB 155.
10 Valentini v Canali (1890) 24 QBD 166.
11 New South Wales Law Reform Commission, 1968, First Annual Report.
12 Allen, 1964, Law in the Making, p 299.
13 Sir Edmund Coke.
14 Dollery (1994); Duggan (1997).
 Chapter 4 Natural Law and Positivism 49

democracy based on the rule of law.”15 In keeping with this, law should
correct prior action which “we now take to be wrong,”16 should satisfy human
needs,17 and require that parties deal with each other “fairly and in good
faith.”18 These general standards are based on the “relatively permanent
values of [a] community.”19 In consequence, these standards are, or should be,
"internationally accepted."20

These maxims affect the way that statutes should be made and interpreted.21
Statutes should not be unjust,22 irrational,23 inconvenient,24 capricious,25
absurd,26 manifestly unreasonable,27 unfair,28 or illogical.29 Instead they should
be effective,30 fair,31 and reasonable;32 they should achieve goals that are
harmonious, rather than conflicting;33 they should also promote the public
interest34 and protect the national interest.35

In contrast to natural law, in which justice and morality are essential,

positivism is completely amoral. It disdains any attempt to judge or censor
laws. Law, it says, is merely what those in power say is the law. However, it
is this very amoral character of positivism which can, and "can" must be
stressed, generate reforming zeal. By recognising a law, natural law deals
with justice and validity in the one stroke. Positivism on the other hand judges

15 Legislative Standards Act 1992 (Qld) s4(1).

16 Webber (1995) p 11.
17 Thomson (1987).
18 Finn (1989).
19 Dietrich v R (1992) 109 ALR 385 at 402-403.
20 Minister for Immigration v Teoh (1995) 183 CLR 273, at 291, 128 ALR 353, at
365 per Mason CJ, Toohey J
21 Cooper Brookes v FCT (1981) 147 CLR 297 at 320-321; 35 ALR 151 at 169-170.
22 Centronics Systems v Nintendo (1992) 111 ALR 13.
23 Centronics Systems v Nintendo (1992) 111 ALR 13.
24 Centronics Systems v Nintendo (1992) 111 ALR 13.
25 Graham v Ninness (1986) 65 ALR 331, Australian Telecommunications
Commission v Parsons (1985) 59 ALR 535.
26 Director of Public Prosecutions v Fowler (1984) 55 ALR 175, Newcastle City
Council v GIO (1997) 149 ALR 623.
27 Hilton v FCT (1992) 110 ALR 167.
28 Minister for Immigration v Petrovski (1998) 154 ALR 606.
29 Alcatel v Commissioner of Patents (1996) 138 ALR 504.
30 Richardson v FCT (1997) 150 ALR 167.
31 Cooper Brookes v FCT (1981) 147 CLR 297 at 320-321; 35 ALR 151 at 169-170.
32 Cooper Brookes v FCT (1981) 147 CLR 297 at 320-321; 35 ALR 151 at 169-170.
33 Project Blue Sky v ABA (1998) 153 ALR 490.
34 Attorney General v Heineman Publishing (1987) 10 NSWLR 86, 191, McManus
v Scott-Charlton (1996) 140 ALR 625, 632
35 Chaudary v Minister for Immigration (1994) 121 ALR 315
50 Chapter 4 Natural Law and Positivism

only validity, and can do nothing, and say nothing, about justice. Therefore
the whole question of justice still remains. In the view of the positivists,
justice is not a necessary attribute of law. Rather it depends on the vigilance
and zeal of those who administer the legal system.

This is most vividly exemplified by Jeremy Bentham. Having proposed his

positivism in opposition to Blackstone's natural law, Bentham went on an
unceasing search for justice. He sought to establish a scientific basis for
legislation. In his Principles of Scientific Legislation, he propounded the
greatest happiness of the greatest number, the utilitarian principle, as the
object of legislation, and he campaigned for numerous reforms. One may not
agree either with Bentham's views or with the reforms he proposed, but it
cannot be denied that he took seriously the question of justice. Thus the very
divorce of law from morality also separated it from the complacency which
marks Blackstone's works.

Unfortunately, positivism will not always affect lawyers as it did Jeremy

Bentham. Positivism also has its ambivalence. Just as the separation of law
and morality can lead to a passionate search for justice, so too can it beget
complacency. Law is what those in authority say we must do. Because they
have the authority, law must be obeyed. Any further enquiry into law is
therefore irrelevant. Stated in this way, such an approach is circular and
unconvincing. Yet it is a not unreasonable description of attitudes of many
modern lawyers bred in the positivist tradition. Bentham would have wept.
For him the separation of law from justice elevated justice to a separate and
ceaseless quest. To some modern lawyers of positivist disposition, the
separation has pushed justice aside to be the plaything of academic jurists, but
no real concern of practical lawyers, judges and law makers.

In the light of the above, it is not difficult to understand the antipathy with
which positivism is regarded by some of its critics. Positivism is not seen by
them as a philosophical attempt to explain the phenomenon of law. Rather it
is seen as an attempt to justify a legal system by obscuring the real issues.
Positivism deals with questions of justice and morality by not asking them.

4.4 Impact
Natural law and positivism differ sharply in the way that they define law.
Positivism says law is what the powers that be lay down as law. Natural law
by contrast says that what the authorities lay down as law is only law if it
conforms to standards of reason and justice.
 Chapter 4 Natural Law and Positivism 51

In a positivist dominated system, the effect of natural law is to temper

positivist assertions that law is merely the will of the rulers. It tempers them
by pressing restraint on law making power in the form of conformity to
standards of reason and justice. One purpose of such restraint is the protection
of human rights. In a purely positivist system human rights would not be
protected or guaranteed because there is no restraint on law making power.
Laws which violate human rights are, in the positivist view, still valid laws.
Natural law counters this by arguing that universally accepted standards of
justice require some minimum protection of human rights. One commonly
used method of protection is a bill of rights, which puts a fetter on the law
making power of parliament. A bill of rights denies parliament power to make
laws which interfere with certain rights, and in this way these rights are
guaranteed or protected. As yet there is no bill of rights in the Australian
constitution, but the point made here is that those who seek a bill of rights
often base their claim on natural law arguments.

4.5 Reconciliation
De gustibus non disputandum.36
It may be possible to reconcile natural law and positivist views of law by
confining them to different spheres of activity. To explain this, we need to go
back centuries in history to the time when England was an agrarian society
and common law was the major source of law. This society lived close to the
edge. There was, for example, constant threat of death from starvation
following a poor harvest. In this society, with no organised police force, there
was also a constant threat of violence and civil strife. In these circumstances it
is not surprising that law was closely connected to rights, especially the right
to life. Trespass by a neighbour’s cow onto your field was not only a dent in
profits but could be a threat to the winter food supply.

However, once society had moved past the time when survival in a near
subsistence economy was the dominant concern, law became concerned with
other matters in addition to the basic issues of life and liberty. Now the
industrial mills started to churn out a surplus well above subsistence level. At
the same time citizens interacted more and had more spare time.
Consequently there was now a substantial sphere of civil life, founded on
surplus time for leisure and surplus income for luxuries, which was not
preoccupied with survival. In these circumstances society needed law not only
to guarantee life but to enhance it. Law is no longer concerned only with what
is right or wrong, or necessary, but also with what is better or even best. Law
is concerned not only with protection of life but pursuit of the good life, the

36 This Latin proverb translates “there is no accounting for taste.”

52 Chapter 4 Natural Law and Positivism

greatest happiness of the greatest number rather than just survival of the
species. From this time onwards, new laws would not necessarily involve
serious issues of human rights.

Additionally, the new laws were largely statutes, the heralds of the
interventionist state, rather than common law innovations. This change
broadly coincided with the major change of emphasis in legal ideology from
natural law to positivism as the dominant theory on the nature of law. In the
days of common law, when law was substantially about rights, natural law
was the dominant legal ideology. It proclaimed that the only valid law was a
law based on universal moral standards, such as those that underlay human
rights. As statute law came increasingly to be used there was more acceptance
of the positivist view of law. Law was what a legislature said was law.
Questions of moral standards and rights were separated from determining
whether a law was a valid law. One reason that this was possible is that laws
made by statute were often matters of social preferences to improve society
rather than fundamental liberty.

This historical sketch suggests the following means of distinguishing, in

broad terms, the sphere of natural law with its emphasis on human rights from
other areas of legislative activity that involves just tastes or preferences and
have a positivist theme. Consider the scope of legislative action as represented
by two circles, with one inside the other. The inner circle is for human rights,
matters which are essential for survival and for basic decencies and standard of
living in a civilised society. This area of human activity is involved with the law
of rights and wrongs, tort and criminal law. These, as already mentioned, are
regulated by common law, which had a strong affinity with natural law.

The outer circle is for matters not involving human rights. It does not involve
matters relating to life and liberty but questions of life style and how liberty is
exercised. It represents those areas of our life where we deal with spare time
(time not devoted to staying alive) and surplus production. Although these
involve matters of value, they are not values of a higher order, but in many
cases are matters of taste or personal preference. This sphere of our lives is
regulated more by statute law than common law.

Yet a qualification is needed. Policy can consist of layers which may be

represented as a pyramid. Sometimes the bottom layers are questions of right
while the higher layers are detail. For example, debate about what equipment
to put in a children’s playground is not, in isolation, an issue of rights. Yet the
underlying notion that a child is entitled to a decent upbringing involving
recreation, exercise and the company of other children is a matter of rights.
 Chapter 4 Natural Law and Positivism 53

Similarly, sacred institutions such as trial by jury, and revered principles such
as the right to silence are not necessarily inherent to human rights. Rather they
are now seen as necessary ways to implement the citizen’s right to procedural
justice in the courts.