Legal Positivism Versus Natural Law: Support Critical Legal Theories

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The debate between natural law and legal positivism is a debate that has been at the core of legal and ethical theory for quite some time. The purpose of this essay is to discuss whether or not critical legal theories like Marxism, feminism, CLS, postmodernism and critical ethical theories like Postmodernist ethics, provide more support to legal positivism than they do to natural law. It will do this, through the discussion of natural law and legal positivism through prominent theories. It will then attempt to establish arguments for and against why each critical legal and ethical theory provide more support to positivism than natural law.

What is Natural Law?

To begin with, it is necessary to establish what natural law and legal positivism is. We will begin with Natural law. There are many competing theoretical definitions on what natural law is, but for the purpose of this essay, we will discuss what natural law is according to John Finnis.

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John Finnis

John Finnis is the most current and probably most prominent voice in natural law theory at the moment. Like all others before him and after Aquinas, he is influenced by the work of St Thomas Aquinas[footnoteRef:1]. [1: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

Natural law according to finis is “the set of principles of practical reasonableness in ordering human life and human community”.[footnoteRef:2]These principles are regarded as ‘basic goods’, and they are according to him “forms of human flourishing”.[footnoteRef:3] They are necessary to attain, in order to achieve true human potential.[footnoteRef:4] [2: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [3: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [4: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).]

In addition, the basic goods are objective in the sense that every person sees them as potential thing to strive for and they are intuitive because they are valuable in their own right as opposed to simply being means to other ends.[footnoteRef:5] The basic goods according to him are also self-evident to every rational person.[footnoteRef:6] Therefore, his theory satisfies Cicero’s components of a natural law theory, as Finnis theory is universal, are a higher standard of rules which everyone aspires to attain, and are apparently self-evident to every rational being. [5: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [6: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).]

In regards to law, Finnis regards law as important for ensuring the common good is upheld in society.[footnoteRef:7] The common good basically comprises of all factors that allow people to practice practical reasonableness and live “flourishing lives”.[footnoteRef:8] In order for this to happen, there needs to be certain conditions of social co-ordination, stability and order, basically “law”, so that each person can chase their own version of the good life, as it relates to practical reasonableness.[footnoteRef:9] Interestingly though, the common good does not exist solely just so people can practice practical reasonableness and flourish. It actually comes from one of the basic goods, which means that it is most ideal in trying to “flourish”, that you seek the common good of others as well.[footnoteRef:10] [7: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [8: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [9: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [10: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).]

Furthermore, if the common goods comprises of a society where everyone can try to lead a flourishing life while working together, then the common good requires law to prescribe a certain standard of rules that govern them working together[footnoteRef:11]. It also needs law-makers, as there are different ways to actually make those rules, so there needs to be a group of people in charge of making those rules[footnoteRef:12]. [11: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [12: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).]

In addition, Finnis seems to see justice and human rights as flowing from natural law, rather than being the source of natural law[footnoteRef:13]. The principles of justice are simply, rules which come from the common good, and as a result, also from the basic goods and the exercise of practical reasonableness[footnoteRef:14]. Also, rights are simply “a supple and potentially precise instrument of sorting out and expressing the demands of justice”[footnoteRef:15]. Essentially, justice and rights come from the common good, which comes from the principles of natural law, as opposed to the principles of natural law coming from justice and rights[footnoteRef:16]. [13: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [14: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [15: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [16: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).]

Finnis also asserts, that laws which are not based on natural law is still law, however he states that, that kind of law would not be law in its true meaning[footnoteRef:17]. Therefore, asserting that immoral law is still law but just not law according to its true meaning. According to him, the true meaning of law refers to the ordering of society, in a way which enables the exercise of the common good[footnoteRef:18]. Any law that does not do this simply does not have the moral authority to be law. This is because the whole purpose of law is to uphold the common good and justice. “This moral role provides law with a presumptive moral obligation of obedience, which is lost once law itself is immoral”[footnoteRef:19]. [17: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [18: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [19: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).

Legal Positivism.

Legal positivism entails that law is a procedural system of legal rules and principles not based on morality, but through empiricism[footnoteRef:20]. [20: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

Legal positivism basically establishes that the question of whether a law is valid or not, is not based on the moral value of that law[footnoteRef:21]. There are many theories of exactly what legal positivism is. From Austin to HLA Hart, many theorists have tried to pin down exactly what positivism is. However, for the purposes of this essay, we will be discussing positivism according to HLA Hart. [21: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

HLA Hart

To understand Hart’s positivism theory, it is quite useful to acknowledge that hart believed in something called “the minimum content of natural law”. This minimum content refers to rules that enable society to survive as a community[footnoteRef:22]. Law can only be understood through referring to those social practices and rules of society, however Hart does not suggest that law is derived from morals or anything of the sort[footnoteRef:23]. [22: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [23: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

According to Hart, society co-exists with the use of “social rules”[footnoteRef:24]. These rules can be similar to law in that they are rules which through acceptance or habit, are backed up through social pressure and are socially important, and may conflict with people’s desires[footnoteRef:25]. However, they are different from what law is. Law to Hart, is a system made of legal rules[footnoteRef:26]. These legal rules are divided into primary rules and secondary rules[footnoteRef:27]. Primary rules are social rules that give people duties to behave according to a certain standard of behaviour[footnoteRef:28]. Example of these rules is rules against violence and rules that protect property. If society was basic and did not evolve, it would usually be enough to have primary rules, however, society does it evolve. It becomes more complex, and suddenly those primary rules need to be interpreted, they need to change and they need certain institutions to impose primary rules. Secondary rules perform those functions, and to Hart, they are namely “rules of change”, “rules of adjudication” and “rule of recognition[footnoteRef:29].” [24: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [25: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [26: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [27: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [28: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [29: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).]

Rules of change are required because society evolves and will need to change some primary rules and secondary rules laws[footnoteRef:30]. The old rules need to change, and the rules of change are there to enable legislative and judicial changes to those rules. The rules of adjudication are basically rules that determine who pass judgement when primary rules are breached[footnoteRef:31]. The rules of adjudication basically give certain institutions or individuals the “power” to punish the guilty person or make them pay damages. Finally the rule of recognition is essential to the existence of a legal system.[footnoteRef:32] According to Hart, every legal system must have a rule of recognition which basically gives effect to all other laws. He does not exactly say what this rule of recognition is, but he does establish how to identify it. He says that its validity is not based on any other rule. “It is not valid or invalid but it is simply just accepted and it is appropriate for use in this way”.[footnoteRef:33] An example of one of these is the “what the Queen in parliament enacts is law”, rule in the United Kingdom[footnoteRef:34]. [30: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [31: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [32: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [33: HLA Hart, The Concept of Law (2nd edn Oxford : Clarendo Press 1961).] [34: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

Now that natural law and positivism have been briefly discussed, it is now possible to move on to analysing whether or not critical legal theories like feminism, Marxism, postmodernism, CLS and post-modernist ethics lean towards natural law or legal positivism.

Feminism

Broadly speaking, feminism is a movement which is essentially focused on achieving justice for women. Feminist Jurisprudence refers to a broad range of legal theory that explores the inequalities of the law towards women[footnoteRef:35]. [35: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

In regards to the question of whether feminist jurisprudence leans towards natural law or positivism, it could be said that feminist jurisprudence leans more towards natural law than legal positivism. This is because all feminist legal theories, from liberal feminism to radical feminism, are all focused towards one thing, “justice for women”[footnoteRef:36]. They all claim that law as it stands, or once stood, is essentially geared towards oppressing women and treating them differently to men. They establish that this is not right. This is not moral. Therefore, they are asserting that the law, due to its incapacity in serving justice is immoral and should not be law. This is clearly echoing the sentiments of natural law theorists, such as John Finnis, who highlights immoral law as not being law in the true sense of the word[footnoteRef:37]. This is quite different from legal positivism, as legal positivism entails that the question of whether or not something should be law, has nothing to do with whether or not is moral[footnoteRef:38]. Therefore, it is clear that feminist jurisprudence can be said to lean towards natural law. [36: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [37: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [38: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

However, at the same time it is possible to say that some feminist jurisprudence can lean towards legal positivism. An example of this is liberal feminism. Liberal feminism essentially seeks to achieve justice for women through equality[footnoteRef:39]. What is Interesting though, is that, it can be said that the liberal feminist search for justice does not lean from the immorality of law. Rather, one could argue that the search for justice stems from a legal principle known as the “rule of law”, which states that everyone is equal under the law[footnoteRef:40]. Any law that disobeys this rule would not be law, because it simply does not follow that legal principle. Therefore, in searching to eradicate laws that treat women unequally, it can be said that liberal feminists are simply searching to apply a legal solution to a legal problem. Thus removing the notion that liberal feminism seeks to eradicate unequal law as due to its immoral nature. [39: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [40: Albert V. Dicey, The Law of the Constituion(8th rev edn Liberty Fund Inc 1982).]

Marxism.

The Marxist jurisprudence sees law in three ways “historicism”, “base and superstructure” and “ideology”[footnoteRef:41]. Historicism according to Marx entails that “each period of economic development has a corresponding class period”[footnoteRef:42]. Base and superstructure has two views. The first is that that the law simply reflects, the economic base[footnoteRef:43]. The other view is that law is the expression of the will of the ruling class[footnoteRef:44]. Finally ideology basically refers to the fact that law is used to impose the dominant ideology of the ruling class on people[footnoteRef:45]. [41: Hugh Collins, Marxism and Law( New Ed OUP 1996).] [42: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [43: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [44: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [45: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

At first glance, the argument for why Marxism leans towards natural law seems like it could hold some weight. This is due to the fact that Marxism sees law as unable to provide justice, as all it really is a tool of oppression by the ruling class. Marx is commenting on the substantive injustice of law[footnoteRef:46]. He then says that in his ideal classless society, law would not be needed[footnoteRef:47]. Therefore, in this way he is highlighting that society needs to do away with law because of its immoral nature as an unjust oppression tool. However, this is where the point starts to lose weight. [46: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [47: Hugh Collins, Marxism and Law( New Ed OUP 1996).

Although, Marx highlights the injustice of law, he does not say whether or not, it ought to be something else. Therefore, according to Marx, the law is still valid and is still enforced regardless of its unjust nature. This is clearly at odds, with natural law theory, as Finnis would say that unjust law is not true law in the sense of the word[footnoteRef:48]. St Thomas Aquinas would call it perverse[footnoteRef:49], and St Augustine[footnoteRef:50] would even go as far as to say it is not law. Therefore, it seems more likely that Marxist jurisprudence leans more towards legal positivism because Marxist jurisprudence does not claim law as invalid due to its immoral nature. This would fit in line with legal positivist doctrine that Law and Morality do not have a relationship, and the notion that it does is “nonsense upon stilts”[footnoteRef:51]. [48: John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).] [49: Thomas Aquinas, Summa Theologica (Coyote Canyon Press 2018).] [50: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [51: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

Critical Legal Studies

Critical Legal studies (CLS) is basically a legal theory that is an attack on the principle that law is found on reason[footnoteRef:52]. This principle is one that exists in liberal legalism, which is essentially what defines our current version of law. Liberal Legalism establishes that legal rules are what are used to make legal decisions, therefore legal decisions are rational[footnoteRef:53]. It rejects that legal decisions are made based on external factors[footnoteRef:54]. It also establishes that a legal system as a whole, is a coherent system of rules and principles without gaps or contradictions, and so is therefore rational. [52: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [53: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [54: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

It can be said that CLS leans more towards natural law, than positivism due to the CLS critique of liberalism[footnoteRef:55]. The CLS critique is basically that CLS does not believe that law itself actually determines legal decisions. It establishes that legal decisions are actually reached, through other external factors like politics and morality[footnoteRef:56]. This is due to the fact that law is too” open-ended and malleable.[footnoteRef:57]” Therefore, legal decisions are not just made with legal rules, but they reference other external factors like politics and morality. Therefore, this is directly in contrast with legal positivism doctrine, which maintains that legal decisions or law does not have a relationship with external factors like morality. Natural law on the other hand fits the CLS doctrine, in that natural law does see links between morality and law. Therefore, it is based on this that CLS can be said to lean towards natural law. [55: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [56: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [57: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).

Post-Modernism

Post Modernism is a legal theory that is basically trying to say that modernistic legal theories are essentially meaningless[footnoteRef:58]. Postmodernism primarily involves a critique of and alternative approach to the methods, aims and assumptions of the modernistic nature of some legal theories; law itself and ethics[footnoteRef:59]. [58: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [59: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

It is possible to say that post modernism does not lean towards positivism. This is because in regards to positivism, positivists argue that there is an objective truth which can be accessed through empirical observation of the world[footnoteRef:60]. This is based on science. Post-modernism rejects the notion of an objective truth that can be found out through a rational procedural way. They reject that objective truth in law is free from any external influence. This is because to post-modernists, procedural search for knowledge is a science. Scientific research is not free from external values. For example, science research which has been proven now to be extremely racist like Darwin’ scientific research. Therefore, if the procedural nature itself is based off this, and this is what positivists and modernists have used as the foundations for their thesis, then their entire thesis makes no sense. As Descartes established[footnoteRef:61], the mind is not a simple mirror of nature, like modernists (which include positivists) argue. The mind is influenced by many things. Therefore, post modernism cannot be said to support positivism at all. [60: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).] [61: Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).]

On the other side of the coin, it be said to support natural law. According to the writings of very prominent postmodern legal theorists Douzinas, Goodrich and Hachamovitc, law is based upon ethics and justice[footnoteRef:62]. They entail that the very point of post-modernist theory, is to expose the meaninglessness of modernist positivism[footnoteRef:63]. Post modernism suggests the use of rhetoric and deconstruction to breakdown law, and expose how law actually has external influences such as justice and morality[footnoteRef:64]. Therefore, it is in this way that post modernism agrees with the doctrine of natural law which provides that law and morality are together. [62: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).] [63: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).] [64: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).]

Post Modernist Ethics

Post-Modernist ethics is concerned with the self. It focuses on the subjective truth from the individual. Post modernistic ethics prescribes two approaches to ethics namely the ethics of alterity and ethics of long hand[footnoteRef:65]. The former describes an ethics approach whereby people, put others before themselves[footnoteRef:66]. While the latter is concerned, with thinking about everyone when we do certain things, not just people in our immediate vicinity[footnoteRef:67]. [65: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).] [66: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).] [67: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).

It cannot be said that post-modernist ethics actually supports natural law or positivism. This is because well both natural law and legal positivism accept that there is an objective truth to the world. Post modernists ethics rejects this approach as it establishes that objective truth is impossible and destructive. Natural law and positivism are both built on the premise that morality, or a sense of what is right and wrong only starts when humans come in contact with each other. So morality is expressed in thinking about protecting ourselves, by doing good to others. With this there can be an objective standard of behaviour in regards to treating people right. Thus morality starts from thinking about ourselves. However Levin, a famous post-modernist says we only know ourselves through contact with others[footnoteRef:68]. So morality must start from the care of others. In other words, it’s not about doing good because you want good to be done to you, it’s about doing good to others because that is what you want. In this, there is no universal foundation for ethics, just a self. [68: Costas Douzinas and Others, Politics Postmodernity and Critical legal Studies ( Routledge 1994).

In conclusion, based on the above analysis, it can be said that feminism leans more towards natural due to the fact that the search for just treatment is a moral one and this ties in neatly with natural law theory. Marxism leans towards positivism as Marx does not say laws are invalid due to the oppressive nature. CLS leans more towards natural law than positivism due to its critique of liberalism. Postmodernism leans towards natural law as it rejects the objective truth through reason claims of positivism and post-modernist ethics does not favour both as it rejects all objective truths.

Bibliography

Books

  1. Albert V. Dicey, The Law of the Constitution(8th rev edn Liberty Fund Inc 1982).
  2. Costas Douzinas and Others, Politics Postmodernity and Critical Legal Studies ( Routledge 1994)
  3. John Finnis, Natural Law and Natural Rights(2nd edn OUP 1980).
  4. Hugh Collins, Marxism and Law( New Ed OUP 1996).
  5. Raymond Wacks, Understanding Jurisprudence(5th edn OUP2017).
  6. Thomas Aquinas, Summa Theologica (Coyote Canyon Press 2018).

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