Friday, January 26, 2018

Natural Law vs Legal Positivism

In the philosophy of law, there is an apparent dispute between “natural law theory" and “legal positivism”.

“Natural law theory" holds that there are laws concerning how to behave to be found in nature - discovered through reason. Man-made laws that conflict with the natural laws are invalid. The cliche phrase is “unjust law is no law at all.”

Positive law states that what is law is that which is posited in a society - whatever the society accepts as law. The fugitive Slave Law of 1850, and the laws enforcing Japanese internment during World War II we’re still laws. They were bad laws, but the idea that there can be no bad laws is absurd. The cliche phrase is, “The existence of law is one thing, it’s merit or demerit another.”

My position is: Why choose?

In the study of morality we recognize a difference between the sociological study of morality and the physical study. Even the most hard core moral realists recognize a distinction between their supposed moral facts and the beliefs of a culture at a given time. We can talk about the morality of Ancient Greece, Christian Ethics, and Marxism while still asserting that there is a fact of the matter that these various systems got more or less right. We can divide this discussion up between “positive morality” (the morality posited by different systems or in different cultures at different times), and what is right and wrong in fact.

Even in the study of science, we recognize this distinction.

We have no trouble recognizing the existence of “positive science” (the science as posited in a particular society at a particular time or by a particular system). We talk about Ancient Greek science, Chinese medicine, and Newtonian physics. We are fully comfortable with the idea that these posited systems may more-or-less agree with a set of scientific facts.

So, why not do the same with law? We can speak about the law posited by different cultures at different times or in accordance with different systems. At the same time, we can still talk about what the law ought to be - talk about the difference between good law and bad law.

Natural law theory does not prohibit us from talking about positive law. In fact, the cliche phrase of natural law theory uses the idea of positive law - the laws that are posited within a society - can be just or unjust. Similarly, the cliche phrase for legal positivism recognizes that there is still room for a discussion of the merit of a law. Neither rules out the possibility of the other.

The trick in recognizing and respecting this distinction between the law that is and the law that it ought to be is to recognize that the phrase "we ought to obey the law" crosses the line. There is nothing in "the law that is" that generates an obligation to obey it. It is simply a descriptive fact about the way a particular society is set up - and it contains no normative force.

Now, the people in that society might believe it contains normative force. However, the proper attitude we take here is the same as we would take towards a culture that believed that enslaving other people is permissible, that slaves have an obligation to serve and obey their owners. While it may be true that the people within that culture believe that they have certain obligations and privileges, we can still ask (and seek to answer) the question of whether they are right to believe that. They could be wrong.

The question "ought I to obey the law" falls within the category of, "What ought I to do?" - which is a moral question, which belongs on the natural law side of the distinction. "What does this society tend to think that I ought to do?" is the sociological or anthropological question, which belongs on the positivist side of the distinction.

Legal positivists and natural law theorists actually agree on this point. The fact that the law commands or forbids something does not answer the question of whether you (morally) ought to do or refrain from doing that particular action. You have to take what the law says into consideration, and then ask additional questions - appeal to facts outside of the law, facts that establish one's moral duties - to determine if there is, in fact, an obligation to obey, or an obligation to disobey, that particular law.

As natural law theory and legal positivism both say, the question of what you ought to do is not settled by the law alone.

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