Theory of Natural Law

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According to natural law philosophy, the law should be founded on both morality and ethics. The theory also claims that human beings discover law by the use of their minds. This implies that it is accomplished by logic. Human beings were created with the intelligence and wisdom to choose the good over the bad, according to the law (Adam, 2009). The theory goes on to say that this rule is derived from humans rather than the world. The core point of the theorist is that this rule applies to all human beings who are able to think. The theory shows that the law is a component of ethics. This means that, every law should have great consideration of ethics .The theory tends to disregard a law that do not incorporate morals and ethics. Some authors have argued that, moral theory is a law for an individual person. This law guides an individual on how to relate with other creatures on earth. According to Marcus Cicero, the purpose of the natural law is to guide human being in the pursuance of their goals and objectives (Blake, 2011). Cicero says that, natural law serves to promote the well-being of the human being in every society. He says that the law guides people to relate well in the daily interactions.

Cicero also argued that, human beings have virtues which help them to distinguish between the wrong and the evil. These virtues help them to achieving their own benefits by living in harmony with other men. According to Cicero, nature and customs were the origin of the society’s laws. He argued that, customs and nature are very crucial in how society laws are made and implemented. Natural law is based on goodness rather than on the consequences.

Some writers argue that, God is the source of natural law. This is because is he gave man knowledge to differentiate between the good and evil. He is the master of the good. This is due to the fact that, God is never associated with the evil. The theory argues that, natural law should not be seen as tough prescribed principles but should be appreciated as the intrinsic reasoning which helps human being to live well and relate well with other human beings (Jorg, 2012). St Augustine of Hippo suggested that, man lived freely under the natural law until he fell from God due to sin. He viewed natural law as divine law which requires reasoning and wisdom.

St. Thomas Aquinas said that, though human beings are not able to identify the eternal law of natural reasoning, it exists in the mind of God. This can only be known to us through the use of reasoning’s. Thomas argues that, natural law is the understanding and conceptualization of the eternal law. He also claims that human beings must maintain these natural laws for their own good, and in the pursuits of God’s knowledge. However, John Duns Scotus and William of Ockham argued that divine will was the sources of natural law other than divine reasoning (Adams, 2009).

The theory appreciates that, morality and law are closely intertwined. This means that it is difficult to separate one from the other. This shows that, definition of one will always lead to the other. Morality deals with definition of what is right or wrong in the society. The theorist argues that, human laws are defined by morality and not administrations (Blake, 2011). They also argue that human beings are guided by nature in determining the laws and guided by the nature in obeying the laws. According to the theory the source of morality is nature. The aim of every individual is to live a happy live. Hence, anything that blocks human being from attaining the happiness is termed as immoral.

Legal Positivism Theory

Legal Positivism theory claims that conventional law is socially made. According to the theory, the law is associated to positive norms which are made by the law makers. Legal positivism is very different from natural law which is based on divine thinking. Legal positivism neither views ethical consideration as important in making law, nor does it see morality as importance in deciding whether to obey law or not (Jorg, 2012). Legal positivist does not base law on the human reasoning, human rights or justice but by the ways in which they are made. This justifies the reason why judges are allowed to make laws in a situation whereby the case does not fall in a clear defined law.

John Austin argues that, “the existence of the law is one thing its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is another enquiry”. Legal positivism does not argue that merits or demerits of the law are not important but they claim that merits and demerit are not factors which determine whether a law exists (Blake, 2011). The presence of laws in a society is due to the existence of a government not due to injustices or to foster democracy.

The laws in different societies depend on what the leaders’ views as socially acceptable. Law can never be based on the merit or demerits but depends on what has been postulated. Positivist views morality and law as two distinct objects. This opposes natural laws which views the two as connected together. For instance, for one to establish what his or her legal right is, he or she has to consult the laws of that country. This contradicts natural law which says that human rights and justice are the main components of law (Jorg, 2012)

On the other hand, in order for one to determine what is moral, he or she has to establish what is morally true. Hence this shows that morality and can never be used as bases of law. We can conclude that, morality, justice, and human rights depend on laws to establish what is moral and where justice is served. Austin claims that, the state is the maker and the enforcer of the laws (Adam, 2009). Thus, it has the powers to punish those who disregard the law. Therefore, this means that the law can be regarded as the expression of the will of the state which must be upheld in force. At times in the enforcing of the law the state makes mistakes.

Kelsen argues that, laws are not just systems of norms of equal levels but have hierarchies. According to him, classifying laws as just coordinated legal norms fails to cater for the issues of hierarchies. Theorist argues that positivist provides for the enforcement of the laws while natural laws do not provide for the enforcement. In natural law the people are supposed to reason and come up with morally acceptable conduct. However, the theory ignores the facts that not all people who will think and act reasonably. This also shows that natural law is not sufficient because it does not clearly states who are the enforcers.

The law also fails to establish what sanctions should be implemented if people fails to honor the law. This justifies the need for the establishment of the legal positivisms. Legal positivists disregarded natural laws because it was based on divine reasoning. On the other hand, people have criticized legal positivism because it disregards morality. Not all things that happen in the society can be solved through the laws. In some cases, morality is considered.

Morality has helped to promote peaceful coexistence between individuals in the society. Morality helps in promoting integrity and promoting human rights. Hence this shows that, morality plays very important role in the day to day activities. Some other criticism is that, not all things that are clear, consistent are considered right can be found in laws. This means that there are other social factors that determine what is good and evil in the society.

The analysis of the two theories shows that, each theory has its own strength and weakness. None of the theories can be disregarded because they are all useful in the day to day activities (Blake, 2011). This means that, the two laws supplement each other. Both laws have one purpose of ensuring order and peaceful coexistence in the society.

References

Adam, S. (2009). Cicero, Aquinas, and Contemporary Issues in Natural Law Theory. The Review of Metaphysics, 62(3), 35-64

Blake, N. (2011). Natural Law and History: Challenging the Legalism of John Finnis. Humanities, 24(1), 11-34

Jorg, K. (2012). The Pure Theory of Law and Its “Modern” Positivism: International Legal Uses for Scholarship. Proceedings of the Annual Meeting-American Society of International Law, 106 (1), 67-81

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