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ACKNOWLEDGEMENT

At the outset, I would like to express my gratitude to our respected


principle sir who has authorized to do the project work. And I would
also like to give a vote of thanks to my respected subject teacher who
has given all of us a wonderful opportunity to work into this project
based on the topic “COMPARATIVE STUDY OF NATURAL LAW THEORY
AND ANALYTICAL POSITIVISM”, which according to me is a very
fascinating and most interesting chapter and moreover it helped me to
do a lot of research and I came to know much about this particular
topic. I am really very much thankful to them. I, personally and
honestly would like to thank my subject teacher who assisted me in
completing my work in a limited time period. I am extremely grateful
to you for providing such a nice support and guidance though you had
a busy schedule.

Secondly, I would like to give a very vote of thanks to our college

librarian who guided me with such a good and relevant books, which

resulted in completion of my project work very soon. Though he was

very busy with the others works during his duty but yet he managed to

find out those important and relevant books for my work. It is such an

honour to have a librarian like him in our institution. Technologically, I

would like to thank some social networking sites through which I got

my notes for my work. We are very much blessed to have these kind of

social sites in today´s world, which genuinely makes our work very

comfortable and exact.

Lastly, I heartily thank my parents, friends, and colleagues. Without

the support of these people I would not be able to complete my project

work fluently. It is all because of their assistance I have completed my

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tiring project work. I am fortunate enough to get support and guidance

from these people and I hope they keep supporting in coming times.

Content

.Introduction

.Natural law theory

.Natural law theory In contemporary jurisprudence

.Legal positivism

.Analytical jurisprudence

.NATURAL LAW THEORY V. LEGAL POSITIVISM

.CONCLUSION

.BIBLIOGRAPHY

Introduction

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Jurisprudence is the science, study, and theory of law. It includes

principles behind law that make the law. Scholars of jurisprudence,

also known as jurists or legal theorists (including legal philosophers

and social theorists of law), hope to obtain a deeper understanding of

the nature of law, of legal reasoning, legal systems, and of legal

institutions. Modern jurisprudence began in the 18th century and was

focused on the first principles of the natural law, civil law, and the law

of nations. General jurisprudence can be divided into categories both

by the type of question scholars seek to answer and by the theories of

jurisprudence, or schools of thought, regarding how those questions

are best answered. Contemporary philosophy of law, which deals with

general jurisprudence, addresses problems in two rough groups:[2]

1. Problems internal to law and legal systems.

2. Problems of law as a particular social institution as law relates

to the larger political and social situation in which it exists.

It is the study of law. It is a type of science that explores

the creation, application, and enforcement of laws. Jurisprudence is

the study of theories and philosophies regarding law.

If we understand the theories and philosophies behind law, then we

can better understand our laws. The word 'jurisprudence' is derived

from the Latin phrase juris prudential. This means 'knowledge of the

law.'

General jurisprudence can be broken down into several different

categories. First, there are categories that represent the types of

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questions scholars seek to address. These questions mostly represent

one of two sub-categories.

The first sub-category is analytic jurisprudence. This area addresses

the meanings and uses of legal concepts, such as, 'what is law?'

The second sub-category is normative jurisprudence. This area

addresses the moral basis of law, such as, 'what is the purpose of

law?'

There are also categories that represent theories, or schools of

jurisprudence:

Natural Law
Natural law is a philosophy of law that focuses on the laws of nature.

This school of jurisprudence represents the belief that there are

inherent laws that are common to all societies, whether or not they

are written down or officially enacted.

This school of thought tells us that law is rational and reasonable.

Natural law proposes that laws are a logical progression from morals.

Therefore, actions that are considered to be morally wrong will be

against the law. But also, actions that are considered to be morally

right can't truly and justly be against the law. Natural law exists

regardless of what laws are enacted.

Natural law (lat. ius naturale, lex naturalis) is

a philosophy that certain rights or values are inherent by virtue

of human nature and can be universally understood through human

reason. Historically, natural law refers to the use of reason to analyze

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both social and personal human nature to deduce binding rules of

moral behavior. The law of nature, as it is determined by nature, is

universal.

In Western culture, the conception of natural law first appears

in Ancient Greek philosophy. Although natural law is often conflated

with common law, the two are distinct. Common law is not based on

inherent rights, but is the legal tradition whereby certain rights or

values are legally recognized by virtue of already having judicial

recognition or articulation. Natural law is often contrasted with the

human-made laws (positive law) of a given political

community, society, or state.[4] In legal theory, the interpretation of a

human-made law requires some reference to natural law. On this

understanding of natural law, natural law can be invoked to criticize

judicial decisions about what the law says, but not to criticize the best

interpretation of the law itself. Some jurists and scholars use natural

law synonymously with natural justice or natural right (Latin ius

naturale), while others distinguish between natural law and natural

right.

Natural law theories have exercised a profound influence on the

development of English common law. Declarationism, a legal

philosophy, argues that the founding of the United States is based on

natural law. Because of the intersection between natural law

and natural rights, natural law has been cited as a component in

the United States Declaration of Independence and the Constitution of

the United States, as well as in the Declaration of the Rights of Man

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and of the Citizen. Within the American Declaration of Independence,

building on natural law, philosophies such as Consent of the

Governed replaced the older doctrine of the Divine right of kings.

These philosophies like social contract theory came of age during

the age of enlightenment through individuals such as John Locke, but

these ideas can be found in Roman law, Greek philosophy and ancient

Buddhist texts.

John Locke incorporated natural law into many of his theories

and philosophy, especially in Two Treatises of Government. There is

considerable debate about whether his conception of natural law was

more akin to that of Aquinas (filtered through Richard Hooker)

or Hobbes' radical reinterpretation, though the effect of Locke's

understanding is usually phrased in terms of a revision of Hobbes upon

Hobbesean contractualist grounds. Locke turned Hobbes' prescription

around, saying that if the ruler went against natural law and failed to

protect "life, liberty, and property," people could justifiably overthrow

the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this

law was by and large protective of natural rights, and it was this

language that later liberal thinkers preferred. Political

philosopher Jeremy Waldron has pointed out that Locke's political

thought was based on "a particular set of Protestant Christian

assumptions." To Locke, the content of natural law was identical with

biblical ethics as laid down especially in the Decalogue, Christ's

teaching and exemplary life, and St. Paul's admonitions. Locke derived

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the concept of basic human equality, including the equality of the

sexes ("Adam and Eve"), from Genesis 1, 26–28, the starting-point of

the theological doctrine of Imago Dei. One of the consequences is that

as all humans are created equally free, governments need the consent

of the governed. Thomas Jefferson, arguably echoing Locke, appealed

to unalienable rights in the Declaration of Independence, "We hold

these truths to be self-evident, that all men are created equal, that

they are endowed by their Creator with certain unalienable Rights,

that among these are Life, Liberty and the pursuit of Happiness." The

Lockean idea that governments need the consent of the governed was

also fundamental to the Declaration of Independence, as the American

Revolutionaries used it as justification for their separation from the

British crown.

IN CONTEMPORARY JURISPRUDENCE
In jurisprudence, natural law can refer to the several doctrines:

 That just laws are immanent in nature; that is, they can be

"discovered" or "found" but not "created" by such things as a bill of

rights;

 That they can emerge by the natural process of resolving conflicts,

as embodied by the evolutionary process of the common law; or

 That the meaning of law is such that its content cannot be

determined except by reference to moral principles. These

meanings can either oppose or complement each other, although

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they share the common trait that they rely on inherence as opposed

to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it

being any less a law, a natural law jurisprudence would say that there

is something legally deficient about an unjust law. Legal

interpretivism, famously defended in the English-speaking world

by Ronald Dworkin, claims to have a position different from both

natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has

in common with virtue ethics that it is a live option for a first

principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of

the English common law. In the struggles between Parliament and

the monarch, Parliament often made reference to the Fundamental

Laws of England, which were at times said to embody natural law

principles since time immemorial and set limits on the power of the

monarchy. According to William Blackstone, however, natural law

might be useful in determining the content of the common law and in

deciding cases of equity, but was not itself identical with the laws of

England. Nonetheless, the implication of natural law in the common

law tradition has meant that the great opponents of natural law and

advocates of legal positivism, like Jeremy Bentham, have also been

staunch critics of the common law.

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Legal Positivism

A second school of jurisprudence is called legal positivism. Generally

speaking, this school of thought is the opposite of natural law.

Legal positivism proposes that there isn't necessarily a connection

between law and morality. Instead, it holds that law comes from

various sources, usually the government. If the government enacts a

law, then it should be followed.

Under legal positivism, there is no valid argument for breaking a law,

even if the law isn't considered to be fair or just. For example, there

would be no valid justification for breaking a law by peacefully

protesting an issue. This is true even if the protestor has strong

ethical and moral objections to the issue - though under a natural law

theory, the protest would be justified.

Analytical jurisprudence is a legal theory that draws on the resources

of modern analytical philosophy to try to understand the nature of law.

Since the boundaries of analytical philosophy are somewhat vague, it

is difficult to say how far it extends. H. L. A. Hart was probably the

most influential writer in the modern school of analytical

jurisprudence, though its history goes back at least to Jeremy

Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the

idea that legal reasoning is or can be modelled as a mechanical,

algorithmic process). Indeed, it was the analytical jurists who first

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pointed out that legal formalism is fundamentally mistaken as a theory

of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view

and descriptive language when referring to the aspects of legal

systems. This was a philosophical development that rejected natural

law's fusing of what law is and what it ought to be. David Hume

famously argued in A Treatise of Human Nature that people invariably

slip between describing that the world is a certain way to saying

therefore we ought to conclude on a particular course of action. But as

a matter of pure logic, one cannot conclude that we ought to do

something merely because something is the case. So analysing and

clarifying the way the world is must be treated as a strictly separate

question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are

laws?"; "What is the law?"; "What is the relationship between law and

power/sociology?"; and, "What is the relationship between law and

morality?" Legal positivism is the dominant theory, although there are

a growing number of critics, who offer their own interpretations.

LEGAL POSITIVISM vs. NATURAL LAW THEORY

There are two “natural law” theories about two different things:

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i) a natural law theory of morality, or what’s right and wrong,

and

ii) a natural law theory of positive law, or what’s legal and

illegal. The two theories are independent of each other: it’s

perfectly consistent to accept one but reject the other.

Legal positivism and the natural law theory of positive law are rival

views about what is law and what is its relation to justice/morality.

Natural Law Theory of Morality

i) Even things which are not man-made (e.g. plants, rocks,

planets, and people) have purposes or functions, and the

“good” for any thing is the realization of its purpose or

function.

ii) The good for us human beings is happiness, the living of a

flourishing life. Happiness or flourishing consists in the

fulfillment of our distinctive nature, what we “by nature” do

best. That involves the development and exercise of our

capacities for rationality, abstract knowledge, deliberative

choice, imagination, friendship, social cooperation based on a

sense of justice, etc. The moral virtues (e.g. courage, justice,

benevolence, temperance) are character traits that help us

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fulfill our true nature. The life of the heroin addict or of the

carnal hedonist is not a good one, because it is inconsistent

with our natural function.

iii) Natural law is the set of truths about morality and justice;

they are rules that we must follow in order to lead a good or

flourishing life. We can know what these principles are by

means of unaided human reason. [The natural law theory of

morality rejects ethical subjectivism (“right and wrong are all

a matter of opinion”) and affirms ethical objectivism (“some

moral opinions are more valid, reasonable, or likely to be true

than others”)]. Immoral acts violate natural law. Hence,

immoral behavior is “unnatural” (in the sense of “contrary to

our function,” not “nowhere to be found in the natural world”),

whereas virtuous behavior is “natural.” For example, lying is

unnatural, Aquinas holds, because the function of speech is to

communicate to others what is in our minds. When we use

words to mislead others, we are using them contrary to their

proper function. Natural Law Theory of Law Legal systems

have a function—to secure justice. Grossly unjust laws (e.g.

“White people may own Black people as slaves,” “women may

not own property or vote”) are not really laws at all, but a

perversion of law or mere violence. As St. Augustine put it, lex

injustia non est lex. Aquinas’s way of stating this point:

positive law has as its purpose the common good of the

community. Any positive law which conflicts/is inconsistent

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with either natural law or divine law is not really law at all.

Hence, not only is there no moral obligation to obey it, but

there is no legal obligation to obey it, either. Augustine,

Aquinas, and Martin Luther King are supporters of this view.

Lon Fuller argued there is some necessary overlap between

legality and justice, because it’s impossible to have a legal

system without fidelity to the rule of law and formal justice.

(Fuller would probably have cited Iraq under Saddam Hussein

as a good example of a society that violated the rule of law so

much that it really had no genuine legal system at all). But

Fuller does not go as far as Augustine or Aquinas, because he

admits that a society can have a genuine legal system that

satisfies the demands of formal justice (“like cases must be

treated alike”) yet still have particular laws that are unjust. In

such a society, judges are independent of the other branches

of government and decide cases on their merits, the society

honors the principles “no punishment without a crime” and “no

crime without a pre-existing, public law,” the accused

receives a fair trial with due process of law, etc. But still,

some of the laws that are consistently and fairly enforced are

unjust (e.g. “women may not own property or vote”). Ronald

Dworkin, whom will talk about more later, defends a view of

legal interpretation (by judges) that he claims is in the

tradition of the natural law theory of positive law. Dworkin

argues it is proper for Supreme Court justices to interpret the

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Constitution in light of the correct principles of justice that our

country tries to honor.

Legal Positivism— Whether a certain rule is a law, creating legal

obligations to comply with it, all depends on its source. Valid laws

are simply rules that come from certain people (kings, city councils,

etc.), in accordance with certain procedures, that the society

enforces. A rule can be a genuine, valid law even though it is

grossly unjust. According to H.L.A. Hart, a contemporary legal

positivist, the essence of legal positivism is the “separation thesis.”

Separation thesis: having a legal right to do x doesn’t entail having

a moral right to do it, and vice versa; having a legal obligation to do

something doesn’t entail having a moral right to do it, and vice

versa; having a legal justification to do something doesn’t entail

having a moral justification, and vice versa; etc. In order to know

what your legal rights are, you need to look at what laws your

society has. In order to know what your moral rights are, you need

to figure out what is the true morality. You might have legal rights

that the true morality says you shouldn’t have (e.g. the right to own

slaves), and your society might deny you legal rights that the true

morality says you should have (e.g. the right to be free, to own one’s

own body and labor power). -- Some of the most influential

defenders of legal positivism are the 19th century philosophers

John Austin and Jeremy Bentham, and the 20th century legal

philosopher H.L.A. Hart. Some terminology from Aquinas and Austin

Aquinas distinguishes four types of law—human, divine, eternal, and

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natural—as follows: Human law—“an ordinance of reason for the

common good promulgated by him who has the care of the

community.” Eternal law —God’s plan for all of creation. Natural

law—The part of eternal law that applies to human beings; it is

God’s plan for us. Natural law can be discerned by unaided human

reason, and it consists in the correct moral principles. E.g. “it is

never permissible intentionally to kill an innocent human being,”

and “one must never intend what is evil, even as a means to

achieving a good or avoiding a bad result” are natural laws, in

Aquinas’s view. Divine law—the part of eternal law that God reveals

to us human beings via Scripture. If something is against natural

law, then it’s against divine law too. But some things, primarily of a

religious nature, are contrary to divine law but not natural law. For

example, natural reason and natural law tell us that the God of

traditional theism exists and should be venerated. But it is only

through divine revelation that we can know that baptism,

membership in the Christian church, etc. are necessary for our

salvation. Aquinas insists that human laws are genuine laws only if

they do not contradict either natural or divine law

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Conclusion

It used to be commonly believed that the disagreement between

natural law theory and legal positivism was about the legal or moral

validity of unjust official actions. Contemporary theorists in both

camps have shown that this topic is in fact one in which agreement,

rather than disagreement, predominates. Finnis has been active in this

clarification. He has also been an important figure in discerning where

the true dispute lies between natural law theory and legal positivism:

he challenges the viability and value of descriptive or conceptual

theories of law that do not partake of moral evaluation. Finnis has

developed the argument that law can only be understood in a moral-

based teleological analysis. This is a substantial challenge, one that

hits at the core of legal positivism, and it will be interesting to see

what responses legal positivism can offer. The response may come at

a meta-theoretical level, grounded in statements about the different

purposes of natural law and legal positivist theorizing and the different

status of the claims being made.

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ANNEXURE

BIBLIOGRAPHY

Books:

Paranjape N.V , “ Studies in Jurisprudence and Legal theory’’….Central


law Agency, 6th Edition..

WEBLIOGRAPHY

www.nlnrac.org/critics/legal-positivism

plato.stanford.edu/entries/legal-

positivism/2012books.lardbucket.org/books/legal...of.../s04-02-schools-

of-legal-thought.html

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