This article is written by Saransh Chaturvedi, a student of LL.M, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. In this article, the author compares and contrasts 2 major schools of thought, namely positive and natural.
The jurisprudence has always focused, upon the nature and the source of law. The question which the title of the article itself raises, seems very obvious but difficult at task. To get ourselves, accustomed with such type of questions, we need to delve more on to the philosophy behind the enactment of law. The focus of jurisprudence towards the nature, is out of a concern to understand this very philosophy behind law. The concern is to understand the legal system in which we are living. Through the understanding of this legal system, perhaps, we will be able to explore more about the nature and quality of our obligation to obey the law. Hence, the answers to the above-titled question seems not very easy. Right from the time with the evolution of the two school jurisprudence, namely positivist and naturalist, any interface between the two seems impossible. The divide among the school is the result of the debate on the issue of how law came into existence and why we should obey the law? There is a lack of systematic treatment of this issue that seems to divide the two competing schools. The dispute was inevitable, analyzing the concept of both schools. Certainly, there are valid arguments for both the side.
The law is needed in a society, for maintaining order, but will that mean, if there is no law, there will be no order. What if tomorrow we don’t find any punishment for committing murder, will it result into people committing murder everywhere? The answer will surely be a ‘no’. Is it some sense, natural humanistic approach towards law or will it only be based on sanction? Perhaps this is a division point of thoughts, where both school of law clashes. Both the side have a valid point to justify themselves and their arguments. On the other side, this is also true, that if there is no punishment of murder then there might be an increase in cases of murder. So, will it mean that the basic natural humanistic approach is different for different people? This difference is where the two school divides.
Positivism v. Naturalism
This article will try to analyze both the situations moving from positivism to naturalism in its strict sense. Before discussing about the theory of school, we must analyze one distinct situation that can be very helpful for us to understand the issue at large. If we assume a situation in which a person with no legal training be made a judge. This scenario can be discussed by referring to one of the famous article titled “Two concept of interest: Reflection on Supreme Court’s balancing test”, and authored by Charles Fried, Assistant Professor of Law, Harvard Law School published in Harvard Law Review in 1964. Can it be said that legal system will break down only because of the reason that judge is ignorant of law? The truth is that the system will go on, and the new judge will not underperform in comparison to his colleagues. The reason behind is the simple notion that the judge, irrespective of what ‘law’ he knows, his position will reflect the basic natural assumption. Its not that he should be compared with those having knowledge at par but even without getting compared, the judge knows that he is having an authoritative “role” to play in a legal argumentative situation that is itself highly structured. Hence indeed, these type of various instances do make us retrospect, as to whether we obey law only of its sanction behind it or its just moral reasoning of human about judging what is good or bad?
There has always been a trend on both the side to characterize their legal position by either maintaining as more ‘positivistic’, i.e., the law is what it is and no deviation must be allowed, or maintain the notion, that law is more ‘naturalistic’, i.e. towards humanistic approach and leaning more towards the ideal code that drives human being forward.
The Positivist Model
The positivists, in general, have always maintained a very clear notion of law, being limited to what law ‘is’. The primary aim for the positivist is only limited to study the law, as it is. The law got the very sanction behind it since it has got its validity from the authority itself. Positivist view this authority, as the only reason to obey the law, in the famous words of Austin, it being the “Command of the Sovereign”. Perhaps it might not be true to much extent in today’s world, which we will discuss later. Positivist, often does not entails themselves with, what ought to be, separating the ideals from the law, which is why there seems a great criticism of positivist separating law from moral.
Thomas Hobbes: Social Contract Theory
While this very practice of regulating citizens’ through government was discussed by many philosophesr we should give reference to Thomas Hobbes’ Social Contract Theory. Hobbes termed a situation as “state of nature”, where there is existence of human without any political order. In this “state of nature”, Hobbes said that humans life would be “solitary, poor, nasty, brutish and short”. Hobbes was certainly of the view that humans can’t be in a regulated manner until and unless there seems to be any control over them. Hobbes does saw the absolute government as the only alternative to the terrifying anarchy. Only Leviathan would enact laws that would preserve the public safety. Not even once, Hobbes has hinted towards naturalistic perspective.
Bentham and Austin
In the 18th and 19th century, legal thinker developed the legal positivism, mainly by Jeremy Bentham and Austin. This came as an opposition to the natural law theory. Contention made under this only relates to the fact about how law has been created. A positivist will not go under the scrutiny of what law consist of but will only prefer scrutinizing how the law comes into force. As per the philosophy, it is not the work of legal positivist to judge the law by the question of justice and humanity, but only by the way the law has been created. What all were classic criticism of Positivism theory will be dealt under the naturalist model.
Jeremy Bentham was the one who initiated with that of legal positivism. But Bentham, did move towards an angle of putting moral philosophy into it. He gave his famous understanding of greatest happiness principle or the utilitarian principle. In this, he explains that it is not just the usefulness but also determining the extent to which it creates happiness. Bentham does give importance to the fact of creation of moral obligation to produce the greatest amount of happiness. These are much apparent in his work, “Introduction to principles of Morals and Legislation”, where he gave importance to the rational principle, to provide for guide in legal reform. Also, in contrast with Hobbes, Bentham wants the legislature to change, as it gives more impetus to the legislature to work in consonance. Nevertheless, Bentham did held that law is not rooted in the natural law but it is the command expressing the will of the sovereign. This view was later developed by Austin. Hence, even if the law questions the moral fabric, this is still law. In spite of the fact, Bentham gives his utilitarian theory, he mostly remained against the natural law fabric.
On similar lines, Austin also approached on a strict line, negating the concept of natural law and providing with the command theory. According to Austin, the law is nothing but a command of sovereign. The sovereign being the one to whom all people grant respect. There is always a part of sanction that is associated with the command. Certainly, Austin’s theory doesn’t mark well considering the current situation of political system. We will not be able to find any political system where Austin’s command theory will lie absolutely fit. Austin was crystal clear in maintaining the notion of law being not moral. In one of the lecture, Austin clearly said, “The most pernicious laws, and therefore those which are most posed to the will of God, have been and are continually enforced as laws by Judicial tribunals”. Even if the law is opposed to nature it is still a law, and must be obeyed, since it is given by the sovereign.
The Naturalist Model
In the previous instance, where an example was referred in which there was no punishment for murder, will this result in people committing murder everywhere? The general answer will definitely be a ‘no’. Hence, this situation clearly implies that there is certain moral obligation which binds humans, irrespective of the fact whether there is law or not. But the intersection is quite difficult to get accustomed with since it revolves around obligatory nature of moral obligation. Because, on the same previous note, one cannot deny the fact that there will be an increase in cases of murder, once there is no punishment. Hence, this moral obligation is decided through the conscience of a person which is different for different person.
The Natural School advocates the importance of reason behind everything. The naturalist model do consist of valid legal knowledge but unlike the positivist model, where the legal knowledge is constrained to only what the authority says, the naturalist will base the legal knowledge with reason as well as with rational awareness and acceptance of the existence of objective values, standards and norms of proper conduct. This factor makes the natural school more appealing, since, it gives us the presupposition which enables us to deal with all these facts or judgement in an intelligent manner. To moreover, get into the detail, natural school does not delve into declaring or discriminating the present legal system or any legal theory. The main contention being the element of reason, must be complied by, irrespective of the legal theory it discusses.
Fuller: Eight principles
There has been a huge debate that creates to the inception of morality in law, famously analyzed by Fuller. This debate has been the center point of Positivist and Naturalist division over the insertion of morality. Fuller provides us with his eight principles which he termed as ‘internal’ to law. The eight principles are as follows:
- Rules must be expressly in general terms;
- Rules must be publicly promulgated;
- Rules must be prospective in effect;
- Rules must be expressed in understandable terms;
- Rules must be consistent with one another;
- Rules must not require conduct beyond the powers of affected parties;
- Rules must not be changed so frequently;
- Rules must be administered in a manner consistent with their wording.
As per Fuller, if any legal system fails on any one of these eight principles, this will not be a bad system, but rather that will not be a system either.
Hart- Fuller Debate: A solution?
Hart was a positivist and Fuller was a naturalist. Both the scholars made there valid assertion on whether law must consist of morality or it should not. Hart strictly derives this assumption and believes that law and morality are not connected. Neither interdependent on each other. On the same note, while giving the analyses of core and penumbra, Hart did realized that there is a part of morality that is having close relationship with law. Hart believed that the law will be law and will not be negated only because of being immoral. While Fuller strictly believes that law should have the inner sense of morality and law and morality can’t be separated. Fuller rejected the positivist approach and argues that goal of the society can be achieved by other means rather than by relying solely on the law. This whole debate was revolving around the Grudge Informer Case where a law was enacted by the then Nazi Government. It was arbitrary. After the fall of Nazi Government, the debate started revolving around the legitimacy of the government. Hart’s contention that it is law inspite of being arbitrary and immoral, since it came into existence by a legitimate government at that time. To which Fuller was against, that there exist no legal system if there is no inner morality.
The question perhaps remains unanswered. This question cannot be answered in the light of equally strong argument from both side. Indeed values are classified, and values must be respected throughout. But, how we will define, which values are ranked higher and which are ranked lower. This is perhaps impossible to determine because of cultural relativism and also that is determined separately with situation. Natural law at times lack the detailedness and particularization of positive law. Positive law sticks to what the law is and does not deal with what ought to be. This ‘ought’ can have various expressions in it which might depend upon the situation and person. The ‘ought’ is where the ‘belief’ system starts. Natural law indeed stands for reason behind, and it is eminently decent in asserting the standard of right or wrong. But the problem arises when this expression of ‘ought’ or rather the ‘belief’ is different for different being, there it becomes necessary to have an authoritative role and create a law which should be described under the notion of what law is and not what law ought to be.
- Anton Donoso, Jurisprudence Today: Naturalism versus Positivism, 41U. Det. L. J. 59 (1963)
- Anton Hermann, Natural Law and legal Positivism, 14 Ohio St. L.J. 178 (1952)
- Anthony D’Amato, The Moral Dilemma of Positivism, 20 Vol. U.L. Rev. 43 (1985)
- Anthony D’ Amato, Towards a Reconciliation of Positivism and Naturalism: A cybernetic approach to problem of Jurisprudence, 14W. Ontario L. Rev. 171 (1975)
- Brian Leiter, Marx, Law, Ideology, Legal Positivism, 101 Va. L. Rev. 1179 (2015)
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