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Naturalism vs PositivismJurisprudence

Instructor: Maam wardaSubmitted by Mehnaz khan llb eveDate 31,oct 2011

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Law

A body of enforceable

rules governingrelationships among

individuals and between

individuals and their

society.

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Aristotle divides law into natural law and positivelaw.

Natural law: is determined by our understandingof what we are, or our human nature.

Positive law: is determined simply by the will ofthe lawmaker. Under natural law something isforbidden because it is wrong, being unsuitableto our human nature, properly understood.Under positive law something is wrong because it

is forbidden. The two kinds of law are clearlyquite opposite. Aristotle might say they arecontraries.

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Natural Law

Natural Law: A system of universal moral and ethical principlesthat are inherent in human nature and that people can discoverby using their natural intelligence (e.g., murder is wrong;parents are responsible for the acts of their minor children).

In ethical philosophy, theology, law, and social theory, a set ofprinciples, based on what are assumed to be the permanent

characteristics of human nature, that can serve as a standardfor evaluating conduct and civil laws. It is consideredfundamentally unchanging and universally applicable. Becauseof the ambiguity of the word nature, the meaning of naturalvaries. Thus, natural law may be considered an ideal to whichhumanity aspires or a general fact, the way human beingsusually act.

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Natural law philosophers

Plato

(idealism) human law should reflect

universal truths, law should imitate

nature (which is inherently good)

Aristotle

(rationalism) through reason, humans

should seek to discover the ideals which

should then guide their actions

Cicero

human law should be based on the "reason

of intelligent man" - but this law must

never be in conflict with the laws of

nature.

St. Thomas Aquinas

(eternal law, natural law, and human law)

eternal law was divine, natural law

"imprinted" eternal law on humans, and

"human law" trained people to follow

natural law.

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Naturalism (philosophy)

Naturalism commonly refers tothe philosophical viewpoint that the naturaluniverse and its natural laws and forces (as opposedto supernatural ones) operate in the universe, and

that nothing exists beyond the natural universe or,if it does, it does not affect the natural universethat we know. Followers of naturalism (naturalists)assert that natural laws are the rules that governthe structure and behavior of the natural universe,

that the universe is a product of these laws andthat the goal of science is to discover and publishthem systematically.

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Metaphysical naturalism Metaphysical naturalism( metaphysics refers to the studies of

what cannot be reached through objective studies of materialreality Metaphysics is a type of philosophy or study that usesbroad concepts to help define reality and our understanding ofit. Metaphysical studies generally seek to explain inherent oruniversal elements of reality which are not easily discovered or

experienced in our everyday life.) Metaphysical naturalism, also called "ontological naturalism" and

"philosophical naturalism", is a philosophical worldview andbelief system that holds that there is nothing but naturalelements, principles, and relations of the kind studied by

the natural sciences, i.e., those required to understand ourphysical environment by mathematicla modeling.

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Methodological naturalism

Methodological naturalism is concerned not withclaims about what exists but with methods oflearning what is nature. It is strictly the idea that allscientific endeavorsall hypotheses and eventsare

to be explained and tested by reference to naturalcauses and events. The genesis of nature, e.g., by anact of God, is not addressed. This second sense ofnaturalism seeks only to provide a framework withinwhich to conduct the scientific study of the laws ofnature. Methodological naturalism is a way of

acquiring knowledge. It is a distinct system ofthought concerned with a cognitive approach toreality, and is thus a philosophy of knowledge.

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Aristotle

Aristotle is often said to be the father ofnatural law. Like his philosophicalforefathers, Socrates and Plato, Aristotle p

osited the existence of natural justice ornatural law.of justice to a qualified view ofpolitical justice, by which he meanssomething close to the subject of modernjurisprudence. Of political justice,

Aristotle argues that it is partly derivedfrom nature and partly a matter ofconvention.

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Thomas Aquinas was the most important Western medieval legal scholarSaint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 7 March

1274) was a philosopher and theologian in the scholastic tradition,

known as "Doctor Angelicus, Doctor Universalis". He is the foremost

classical proponent of natural theology, and the father of the Thomistic

school of philosophy, for a long time the primary philosophical approachof the Roman Catholic Church. Aquinas distinguished four kinds of law:

eternal, natural, human and divine. Eternal law refers to divine reason,

known only to God, God's plan for the universe; man needs this, without

which he would totally lack direction. Natural law is the human

"participation" in the eternal law in rational creatures and is discovered

by reason. Divine law is revealed in the scriptures and is Gods positivelaw for mankind. Human law is supported by reason and enacted for the

common good.[19] Natural law, of course, is based on "first principles":

. . . this is the first precept of the law, that good is to be done and

promoted, and evil is to be avoided. All other precepts of the natural law

are based on this . .

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Thomas Hobbes

Thomas Hobbes was an EnglishEnlightenment scholar

In his treatise Leviathan, (1651), Hobbes expresses a view

of natural law as a precept, or general rule, found out by

reason, by which a man is forbidden to do that which is

destructive of his life, or takes away the means of

preserving the same; and to omit that by which he thinks

it may best be preserved. Hobbes was a social

contractarian[21] and believed that the law gained

peoples' tacit consent. He believed that society wasformed from a state of nature to protect people from the

state of war between mankind that exists otherwise. Life

is, without an ordered society, "solitary, poor, nasty,

brutish and short". It is commonly commented that

Hobbes' views about the core of human nature were

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Lon Fuller

Writing after World War II, Lon L. Fullernotably emphasised that the law mustmeet certain formal requirements (such asbeing impartial and publicly knowable). Tothe extent that an institutional system ofsocial control falls short of theserequirements, Fuller argues, we are lessinclined to recognise it as a system of law,

or to give it our respect. Thus, law has aninternal morality that goes beyond thesocial rules by which valid laws are made.

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John Finnis

Sophisticated positivist and natural law theoriessometimes resemble each other more than theabove descriptions might suggest, and they mayconcede certain points to the other "side".Identifying a particular theorist as a positivist or anatural law theorist sometimes involves matters ofemphasis and degree, and the particular influenceson the theorist's work. In particular, the oldernatural lawyers, such as Aquinas and John Lockemade no distinction between analytic and

normative jurisprudence. But modern naturallawyers, such as John Finnis claim to be positivists,while still arguing that law is a basically moralcreature.

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Positive Law Positive Law: The written law of a

particular society at a particular point intime (e.g., the U.S. Constitution, the

Texas Securities Act, the InternalRevenue Code, and published judicialdecisions).

the body of legal theory which viewslaw as the product of human thoughtand will.

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Positive Law Philosophers

Thomas Hobbes

law must be made by man to protect

man from his own natural brutality, law

must maintain order and strength in a

society

John Austin

(supporter of Utilitarianism) the purpose

of law and government is the greatest

advancement of human happiness

Jeremy Benthem

(founder of Utilitarianism) the purpose

of law and government is to provide thegreatest happiness for the greatest

number of people

H.L.A. Hart

law as a system of coercive orders;

Primary Rules, Secondary Rules (rules of

recognition, change, and adjudication)

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Positivism

Positivism is a philosophical approach, theory,or system based on the view that in the socialas well as natural sciences, sensoryexperiences and their logical and mathematical

treatment are together the exclusive source ofall worthwhile information. Introspective andintuitional attempts to gain knowledge arerejected. Though the positivist approach hasbeen a recurrent theme in the history of

western thought from the Ancient Greeks tothe present day, the concept was developed inthe early 19th century by the philosopher andfounding sociologist, Auguste Comte.

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Jurisprudence

In jurisprudence, "legal positivism"

essentially refers to the rejection

of natural law, thus its common meaning

with philosophical positivism is somewhat

attenuated and in recent generations

generally emphasizes the authority of

human political structures as opposed toa "scientific" view of law.

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Antipositivism and critical theory

Antipositivism and critical theoryAt the turn of the 20th century, the firstwave of German sociologists formally

introduced methodological antipositivism,proposing that research should concentrateon human cultural norms, values,symbols,and social processes viewed froma subjective perspective. Max Weber argued

that sociology may be loosely described as a'science' as it is able to identify causalrelationships

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Modern positivism

Modern positivism In the original Comtean usage, the term "positivism"

roughly meant the use of scientific methods to uncoverthe laws according to which both physical and humanevents occur, while "sociology" was the overarching

science that would synthesize all such knowledge for thebetterment of society. approach to both research andtheory construction in contemporary sociology, especiallyin the United States.

The majority of articles published in leading Americansociology and political science journals today are

positivist (at least to the extent ofbeing quantitative rather than qualitative). Thispopularity may be because research utilizing positivistquantitative methodologies holds a greater prestige in thesocial sciences than qualitative work.

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Logical positivism

Logical positivism (later and moreaccurately called logical empiricism) is aschool of philosophy thatcombines empiricism, the idea thatobservational evidence is indispensablefrom knowledge of the world, with a

version of rationalism, the idea that ourknowledge includes a component that isnot derived from observation.

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Positivism in science today

Positivism is elsewhere defined as "the view thatall true knowledge is scientific," and that all thingsare ultimately measurable. Positivism is closelyrelated to reductionism, in that both involve the

view that "entities of one kind... are reducible toentities of another," such as societies toconfigurations of individuals, or mental events toneural phenomena. It also involves the contentionthat "processes are reducible to physiological,physical or chemical events,"and even that "social

processes are reducible to relationships betweenand actions of individuals," or that "biologicalorganisms are reducible to physical systems."

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Criticisms

Max Horkheimer and other critical theorists criticized theclassic formulation of positivism on two grounds. First, theyclaimed that it falsely represented human social action.Positivism ignored the role of the 'observer' in the

constitution of social reality and thereby failed to considerthe historical and social conditions affecting therepresentation of social ideas. Positivism falsely representedthe object of study by reifying social reality as existingobjectively and independently and labor actually producedthose conditions. Secondly, he argued, representation ofsocial reality produced by positivism was inherently andartificially conservative, helping to support the status quo,rather than challenging it. This character may also explainthe popularity of positivism in certain political circles.

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Positivism has also come under fire on religiousand philosophical grounds, whose proponentsassert that truth begins in sense experience,but does not end there. Positivism fails toprove that there are not abstract ideas, laws,and principles, beyond particular observablefacts and relationships and necessaryprinciples, or that we cannot know them. Nor

does it prove that material and corporeal thingsconstitute the whole order of existing beings,and that our knowledge is limited to them.

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Legal positivists

Positivism simply means that law issomething that is "posited": laws arevalidly made in accordance with sociallyaccepted rules. The positivist view on lawcan be seen to cover two broad principles:Firstly, that laws may seek to enforcejustice, morality, or any other normativeend. Secondly, that law is nothing more

than a set of rules to provide order andgovernance of society. The Classicalversion of positive law theory is JohnAustin's (1797-1859)"command theory.

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Natural Law Vs. Positive Law

Throughout history many philosophers have come to be linked to eitherbranch of law. Philosophers such as Aristotle advocated Natural law,while others, such as Thomas Hobbes, supported Positive law. Eachprovided strong notions that helped form modern day law.

Aristotle believed that because humans are capable of a higher level of

thinking that they could therefore judge for themselves. This is alsoknown as rationalism. He was committed to his belief that because ofour higher level of thinking, humans are capable of obtaining truehappiness. He believed that the sole purpose for law was to makepeople happy. Any law that served towards the betterment of thepeople was therefore just, and any law that made people unhappy wasunjust and ought to be disobeyed and debated over in order to satisfyall. He felt that the reason behind unjust laws was their grounds were

flawed and were unable to serve justice.

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Aristotle's perception of justice was associated with lawsthat made the majority happy; only if the people werehappy could justice ever be served. This view contraststhat of Thomas Hobbes whose standpoint reflectedPositive law. In conflicting with Aristotle's belief that

humans can govern themselves due do rationalization,Hobbes believed that humans are violent and war like andthat they have a right to all things. He was dedicated inhis theory that Natural law grants too much freedom tohumans. Hobbes argued that a governing body wasnecessary to control society by enforcing laws and

deciding through law what was morally right and wrong.

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Conclusion

Natural law, however, is morefundamental. Positive law cannot changeor abrogate natural law. Positive law isconcerned with human activities orbehaviour that natural law has not ruledon. Positive law, as St. Thomas says, canonly add to natural law; it cannot subtractfrom it. Thus, another way of looking at

the division of law into natural law andpositive law is to say that postive law islaw that is additional to natural law.

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Is natural law necessary for

identifying positive law? No one doubts the existence of positive law, but we wonder

about its rightness. No one doubts the rightness of natural law,but many wonder if it actually exists. PL exists even whenunjust, but for NL to exist it is not enough to be just. One wayof comparison between them may be articulating the notion ofthe existence of law or its being in force

we need to take a look at the history of the main conceptionsof the relations between PL and NL. The great legal cultureswere built up around some general idea of what law should belike. For the Romans, PL did not consist primarily in an arbitraryact of imposition of rules of conduct, but in a set of rulesderiving from the very nature of social relations. For this reason

the jurist Gaius (2nd

century AD) could say that the first sourceof law is not statute but nature. Legal science itself is notknowledge of laws, but of things, i.e., of right things, that is tosay of the normalityof social relations.

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These are only a few of the manyexamples of how in fact an idea of NLhas influenced a general understanding of

PL and its contents. However, the factthat a conception of NL has inspired a PLculture does not mean that NL itself isrelevant for a PL system. Indeed, we may

think that this is the role and the taskthat the meta-legal has always had in theformation of legal rules.

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Three faces of the relationship

between positive and natural law The relevance of NL might be detected

within three main profiles of legaltheory: the foundation of the obligationto obey legal rules, the content of legalrules, and the form of legal rulesthemselves. For each of these three

points we can ask ourselves whether weneed to have recourse to NL.

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Thank you