You are on page 1of 6

1

NATURAL LAW VS- POSITIVE LAW__________________




Bianca Cirimele
POSC 414
Dr. Jason Whitehead
Spring 2012

What makes the law legitimate? What is a legitimate source of law? What binds people to
obey the law? Is there an essential connection between the law and morality? Can the content of
a law disqualify it from being considered a legitimate law, which must be obeyed? This debate
has been taken up by two major groups of legal theorists: Natural Law theorists and Legal
Positivists. Natural Law theorists such as Plato, Aristotle, and St. Thomas Aquinas argue that a
law is only just and legitimate if it promotes the common good. For Legal Positivists like John
Austin, H.L.A Hart, and Thomas Hobbes, a law is legitimate if it has been enacted through the
proper channels by someone with the power to do so regardless of the content of that law. While
each theorist presents his own explanation, each seeks to answer these crucial questions about
law and society.
Legitimate laws must come from legitimate sources. Legal Positivists argue that for the
source of law to be legitimate, it must come from a source of power. For Austin, the source of
law must be the only person who the subjects are in the habit of obeying. They must also be
willing to back their sanctions and laws with credible force. Natural Law theorists posit that the
source of law is divine or can be discovered and formed according to what is just and will
promote the common good. Aquinas takes the stance that the source of divine law is God.
Human laws are derived from these divine laws and practical reason. Aristotle and Plato agree
that concepts of law and justice are derived from nature and reason, which govern actions to
move toward the higher good. Aquinas makes the distinction that the person or persons who
2

makes the law must be in care of the community. This is similar to Hobbes in that he believes the
duty of those who make law to be to care for and protect the society that they govern. Hobbes
finds a middle path on the topic of the source of law. He contends that the individual
subordinates himself to the sovereign who can create and enforce laws according to a social
contract with the people.
1
Hart differs from Austin in that he believes that the sovereign cannot
simply make laws as he or she pleases. The source of law is the sovereign who produces laws
through following primary and secondary rules.

Natural Law theorist St. Thomas Aquinas argues that human law is legitimate only if it is
in line with divine law and promotes universal happiness. All law is fashioned to the common
welfare of men. He posits that neglecting Gods law or the universal happiness in the formation
of a law makes it unjust. Accordingly, Aquinas advances that an unjust law is not a legitimate
law at all and does not have to be obeyed.
2
In stark contrast, Legal Positivist John Austin
contends that legitimate law is nothing more than commands from a sovereign to the people who
must obey him backed by credible threats and sanctions. The laws legitimacy is completely
independent of the morality of its content and must always be obeyed. It draws its validity from
the power of the sovereign who is the only ruler that subjects are in the habit of obeying. He
argues that the law as it exists is separate from what it ought to be. Natural Law Theorists heckle
this notion because it shows no concern for morality or protection of the people. Austin
maintains the division between morality and the law and concludes that the content of the law is

1
Hobbes, Thomas. "Levinthian." The Great Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 109-133. Print.

2
Aquinas, Thomas, St.. "Summa Theologica." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 57-79. Print.

3

legitimate through the power that created it.
3
On the more moderate end of the Legal Positivist
tradition is a philosopher who was influenced by both Natural and Positivist jurisprudence.
Thomas Hobbes argues that the law receives its legitimacy from a social contract between the
people who are governed and their sovereign. He likens government to a biblical sea monster.
Like an anatomical head, the sovereign rules over the body of subjects whose power is beneath
it. Like the monster, the government is all-powerful. Yet unlike Austin, he believes there to be
limits to political obligation. He argues that when a citizens life is in danger, they have the right
to disobey the government or a law. Challenging Austins idea that the law is legitimate because
of the credible force of the sovereign is H.L.A. Hart. He agrees with Hobbes idea that laws are
social contracts between the government and the people. He contends that legitimate law is not
just commands backed by real force and sanctions, but because it has been enacted through
primary and secondary rules. If a law has been dually enacted where primary rules regulate
conduct and secondary rules allow primary rules to be created or altered then it is legitimate and
must be obeyed. Additionally, Hart sees that Austins Command Theory presents a problem in
the varying types of laws that he believes need to be in place, notably those conferring legal
powers to adjudicate or legislate (public powers) or to create or vary legal relations (private
powers) which cannot, without absurdity, be construed as orders backed by threats.
4


Similar to the concept of legitimate law is the concept of what is just. Natural Law
theorists Plato and Aristotle advance the idea justice is a virtue. It is an inseparable part of

3
Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 335-363. Print.

4
Hart, H.L.A. Concept of Law. Oxford, London: Oxford University Press, 1961. 76-107. Print.

4

oneself and is a driving force toward the common good. Those who subscribe to the Natural Law
tradition claim that what is good and just is based on an objective standard of what is right and
wrong. Plato argues that there is an order to the universe which He posits that the just man can
do nothing to harm anyone else and does his part as an individual in society to help it function.
Aristotle posits that each man should get what is due to him and that every action has a motive
and it is to move toward the higher good. He also posits that justice is more than just being
honest and following the obligations provided by the law. This implies that the law is open to
interpretation and criticism if the content obligates one to go against the goal of a peaceful
coexistence. Aristotle agrees with Plato in giving each man his right is just as long as it promotes
the good, or distributive justice.
5
They argue that the law is out in the world waiting to be
discovered. The law reveals itself when people live virtuously to help achieve the common good.
For example, Suppose that a friend when in his right mind has deposited arms with me and he
asks for them when he is not in his right mind, ought I to give them back to him? No one would
say that I ought or that I should be right in doing so, any more than they would say that I ought
always to speak the truth to one who is in his condition.
6
Their theoretical perspectives can be
attributed to their philosophical time period as opposed to the more practical thinkers of later
times.
Once legitimate sources have created legitimate and just laws, there must be a reason as
to why people are compelled to follow or obey them. Natural Law subscribers believe that the

5
Aristotle, . "Nicomachean Ethics- The politics." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 26-40. Print.

6
Plato, The Dialogues of Plato translated into English with Analyses and Introductions by B.
Jowett, M.A. in Five Volumes. 3rd edition revised and corrected (Oxford University Press,
1892). Chapter: BOOK I

5

ultimate end is the greater good and law is ordered to serve the wellbeing of man. Good laws
should be followed because they follow reason and are inherently valuable and are a means to
the ultimate human end or telos. Additionally, they argue that man was given reason, which
distinguishes him from beasts. It is this reason, which allows him to control his actions and
impulses to act justly. Acting justly and virtuously leads to the good life and the ultimate
happiness. Opposite these thinkers is Austin. He believes that people are obedient to the letter of
the law because if they do not then they will be punished with force. Fear becomes a motivator
for obedience for both Austin and Hobbes. Hobbes contends that the reasonable person would
give up certain rights and willingly submit to the authority of a sovereign to maintain protection
and peace in society. They have willingly engaged in a social contract, which binds them to obey
if the sovereigns protective obligations are met. They are motivated to obey because of the fear
of life outside of the safety of the sovereignty, in the world of unpredictable, reasonless war. Hart
sides with Hobbes on the idea that people are obedient to the law because they are involved in a
social contract. Hart sees that the subjects agree to follow and be obedient to the laws if they are
made and changed according to the agreed upon primary and secondary rules of that government
or society.
Each philosopher sought to answer what makes law or juice legitimate. For some such as
the Natural Law theorists, it comes a drive toward the greater good, reason and the divine
through discovery or someone in the care of the community; and is maintained through the same
means, which discovered and created it. For others such as Legal positivists it comes from
power or a social contract, which binds subjects with fear, force, or reason. The two groups
intersect and diverge at varying points, but all ultimately seek to understand a part of what is so
central to the human condition, the law.
6




References

Hobbes, Thomas. "Levinthian." The Great Legal Philosophers. Ed. Clarance Morris.
Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 109-133. Print.

Aquinas, Thomas, St.. "Summa Theologica." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 57-79. Print.

Austin, John. "Lectures on Jurisprudence." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 335-363. Print.

Hart, H.L.A. Concept of Law. Oxford, London: Oxford University Press, 1961. 76-107. Print.


Aristotle, . "Nicomachean Ethics- The politics." The Great Legal Philosophers. Ed. Clarance
Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 26-40. Print.

Plato, The Dialogues of Plato translated into English with Analyses and Introductions by B.
Jowett, M.A. in Five Volumes. 3rd edition revised and corrected (Oxford University Press,
1892). Chapter: BOOK I

*Ideas were paraphrased from the above works cited.