Essay on The Difference Between Natural Law and Legal Positivism

1774 Words Nov 27th, 2012 8 Pages
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THE DIFFERENCE BETWEEN NATURAL LAW AND LEGAL POSITIVISM This essay is going to discuss and analyse the differences between two basic principles- natural law and legal positivism. According to Hume, there are two realms of human enquiry , one in the field of facts which is concerned with what ‘ is ‘ actually the case and the other in the field of ‘ought’ that is, what ought to be the case1. Those who believe in the principle of natural law are known as naturalists while those who believe in the principle of legal positivism or ‘positive law’ are known as positivists. This is a brief overview of the two principles of
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‘There are two aspects, therefore, that emphasise the contrast between positivism in its caricatured form and natural law theores. First,law is exclusively the premise of the legal caste(incluing legilsators) This deprives law of any spurious claims of intrinsic morality and ensures the individual’s right to his own conscience, while reserving the legal system’s right to punish him for transgressing. Secondly, it allows for precise statements about the nature of valid law which approximate to the lawyers’ experience.’8 Natural law is unwritten while legal positivism consists of the written rules and regulations by the government- codes, acts. Another distinction is that natural law is ‘the order of conviviality(literally, the order of living together)’9 - the conditions of conviviality are universal. Legal positivism on the other hand is specific to a particular area. ‘While positivism states that the concept of law is simply what the legal system in a given society recognizes as law, naturalisation considers law to be an ideal, commonly shared by human societies’10Natural law follows a test. If it fails the moral test, then it is not good law. Positivism doesn’t follow that test.

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