Legal Positivism and Natural Law

1. Legal Positivism and Natural Law Unit 2

2. John Austin • Laws are rules laid down by superiors to guide those under them • Rules are commands that affect specific acts or general acts • Divine-laid down by God for humans (moral obligations) • Positive-laid down by political rulers (legal obligations)

3. John Austin • The sovereign does not need to claim it is ruling justly or for the common good of the people • The sovereign doesn’t have any moral obligations • That doesn’t mean that the sovereign or the people are not subject to God’s law

4. H.L.A. Hart • The law has to be understood in terms of rules not commands • There are types of legal rules • Rules exist when people act in a certain way and regard deviations from that way as something to be criticized

5. Descriptive Social Rules • Persistent patter of social behavior • External aspect; describe patterns of behavior

6. Normative Social Rules • A group uses rules as guidance and justification of its own behavior. The rules are used in praise of and criticism of others • Internal-provides a norm by which members of the group measure their own actions

7. Primary Rules • Rules imposing obligations

8. Secondary Rules • Singles out the rules • Specifies how the rules can be changed • Specifies who can enforce and apply the rules

9. H.L.A. Hart • A person has an obligation when a certain kind of rule applies to him • Social pressure to confirm must exist • The rule must help maintain some aspect of society that is regarded as important and valuable

10. Dworkin • Positive law cannot be interpreted and applied without introducing morals and judgment • Morality will influence the way the rules are understood • Laws consist of explicitly adopted rules plus best moral principles that lie behind the rules • Proposed principles and the rules must “fit”

11. “Fit” • Logical consistency-the underlying principle must be logically consistent with most of the rules • The underlying principle must help to justify or provide rationale for the rules • This theory means judges are allowed to rely on their own moral judgments in deciding cases

12. Natural Law • Morality enters into the determination of what the law is • In order to be law, norms must be in some way morally acceptable

13. Lon Fuller • “Inner morality of law” • General systems of law abide by certain moral principles • Law is intended to regulate and control conduct by means of general rules • The rules are directed at humans who are capable of deliberation and choice

14. Lon Fuller • The rules must be applied prospectively vs. retrospectively • The rules must be relatively clear in meaning • There is a prima facie obligation to obey the rules of any genuine system of positive law

15. Lon Fuller • This does not guarantee that every genuine law is a just law • If a law is seriously unjust the prima facie obligation van be extinguished

16. Aquinas • Traditional Natural Law • Natural relationship between religion and morality • The Ultimate source is God • We have an innate ability to understand natural law • We possess a natural sense of what is right and what is wrong

17. Aquinas • We seek what is good and naturally avoid what is not good or that which is harmful • If a positive law conflicts with principles of natural law these laws are invalid

18. Aquinas • Human law-positive law • Eternal law-principals of action and motion provided by God to enable each thing to perform its proper function • Natural law-Principles of Eternal law specific to human beings • Divine law-Law the exists over and above Natural law, guiding us to the ultimate goal

19. Review • Aquinas Eternal law is universal and applies to all situations Natural law takes priority over positive law Natural law imposes obligations on us

20. Hart • Primary Rules create obligations • Secondary Rules change primary rules • Having an obligation doesn’t mean people are obliged to fulfill it

21. Fuller • Inner morality of the law • Positive laws are created to further good • Morality requires obeying the law

22. Austin • Believes the laws are a series of commands • These commands impose obligations on man • There is no link the law and moral obligation

23. Positive Law • Man made law • Imposes legal obligations on people vs. moral obligations

24. Legal Positivism • There is no link between positive law and morality • Positive LawMan made laws

25. Natural Law vs. Positive Law • Natural law is applies universally vs. positive law that applies to people within a given territory

26. Writing Assignment • Chapter 1 in the textbook describes the views of a number of philosophers concerning the concept and nature of law. An important step in understanding philosophies of law is determining, with respect to any particular philosophy, what law is, how the philosophy conceives of law as a system, and how the philosophies address the commonplaces of law concerning authority and the common good. Choose five philosophers and in 1500 word paper: • Summarize the views of the philosopher relating them to the concept and nature of law. What is law, in this philosopher’s view? How does law function as a system? • Analyze the philosopher’s views, discussing why they are logical or illogical, consistent or inconsistent, persuasive or unpersuasive. Matters that might be relevant to your analysis could include:  the manner in which the philosopher addresses the commonplaces of authority and common good or the philosopher’s attempts to address inadequacies of earlier philosophies. • Criticize the philosopher’s views, explaining why such views are logical or illogical, consistent or inconsistent, and persuasive or unpersuasive. Illustrate your criticisms with examples of situations or “clear cases” that demonstrate the philosophy’s success or failure to satisfactorily account for the concept and nature of law.     

27. Writing Assignment • Supplement your discussion with material from at least two sources other than the textbook. • In addition to fulfilling the specifics of the assignment, a successful paper must also meet the following criteria: • Length of the paper should be at least 1500 words,excluding cover page and references. • Viewpoint and purpose should be clearly established and sustained. • Assignment should follow the conventions of Standard American English (correct grammar, punctuation, etc.). • Writing should be well ordered, logical and unified, as well as original and insightful. • Your work should display superior content, organization, style, and mechanics. • Appropriate citation style should be followed.

28. Writing Assignment • When you save your paper you must save your name in the file name for identification purposes. • Example: jclayunit2paper.doc