Positive vs. Natural Law
Read the following text and discuss the questions below using the forum option:
1. What are the basic differences between positive and natural law theories?
2. What, according to natural law theorists, should be done to prevent law from defending unjust interests?
3. What do you think is the most effective way of improving the law?
The central contention between positive and natural law theories is: How and why can law (and its enactment in legislation, judicial decisions, and customs) give its subjects sound reason for acting in accordance with it? How can a rule's legal validity, or its reported efficacy, make it authoritative for its subjects?
Most legal theories hold that law's “source-based character”, its dependence upon social facts such as legislation, custom or judicially established precedents, is a fundamental and primary element in “law's capacity to advance the common good, to secure human rights, or to govern with integrity”. Natural law theories, however, treat law as morally problematic, understanding it, on the one hand, as a requisite for ensuring social order and welfare, but on the other, as a device that can readily become the instrument of great evil, unless its authors steadily and vigilantly protect it from doing so, both in scrutinising and revising the content of its rules and principles, and in developing the procedures and institutions by which they create and administer it.
Most legal theories understand law as a remedy against the great evils of anarchy (lawlessness) and tyranny. The approach of natural law theory differs in that it draws attention to the fact that one of tyranny's most characteristic forms is the use of law as a mask for fundamentally unjust decisions cloaked in the forms of law and legality.
1. What are the basic differences between positive and natural law theories?
2. What, according to natural law theorists, should be done to prevent law from defending unjust interests?
3. What do you think is the most effective way of improving the law?
The central contention between positive and natural law theories is: How and why can law (and its enactment in legislation, judicial decisions, and customs) give its subjects sound reason for acting in accordance with it? How can a rule's legal validity, or its reported efficacy, make it authoritative for its subjects?
Most legal theories hold that law's “source-based character”, its dependence upon social facts such as legislation, custom or judicially established precedents, is a fundamental and primary element in “law's capacity to advance the common good, to secure human rights, or to govern with integrity”. Natural law theories, however, treat law as morally problematic, understanding it, on the one hand, as a requisite for ensuring social order and welfare, but on the other, as a device that can readily become the instrument of great evil, unless its authors steadily and vigilantly protect it from doing so, both in scrutinising and revising the content of its rules and principles, and in developing the procedures and institutions by which they create and administer it.
Most legal theories understand law as a remedy against the great evils of anarchy (lawlessness) and tyranny. The approach of natural law theory differs in that it draws attention to the fact that one of tyranny's most characteristic forms is the use of law as a mask for fundamentally unjust decisions cloaked in the forms of law and legality.
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