CHAPTER 6 LAW & MORALITY

CHAPTER 7
NATURAL LAW
&
POSTIVE LAW

LECTURER: N. NEWAZ KARIM (ACCA AFFILIATE)

 CHAPTER 6 LAW & MORALITY
THEORIES OF NATURAL AND HUMAN LAW

Thomas Aquinas, much like Aristotle, wrote that nature is organized for good purposes.
Unlike Aristotle, however, Aquinas went on to say that God created nature and rules the
world by "divine reason."

Aquinas described FOUR KINDS OF LAW:

ETERNAL LAW was God’s perfect plan, not fully knowable to humans. It determined the
way things such as animals and planets behaved and how people should behave.

DIVINE LAW, primarily from the Bible, guided individuals beyond the world to "eternal
happiness" in what St. Augustine had called the "City of God."

Aquinas wrote most extensively about NATURAL LAW. He stated, "the light of reason is
placed by nature [and thus by God] in every man to guide him in his acts." Therefore, human
beings, alone among God’s creatures, use reason to lead their lives. This is natural law.

The master principle of natural law, wrote Aquinas, was that "good is to be done and
pursued and evil avoided." Aquinas stated that reason reveals particular natural laws that
are good for humans such as self-preservation, marriage and family, and the desire to know
God. Reason, he taught, also enables humans to understand things that are evil such as
adultery, suicide, and lying.

While natural law applied to all humans and was unchanging, HUMAN LAW could vary
with time, place, and circumstance. Aquinas defined this last type of law as "an ordinance of
reason for the common good" made and enforced by a ruler or government. He warned,
however, that people were not bound to obey laws made by humans that conflicted with
natural law.

THEORIES OF POSITIVISM

COMMAND THEORY OF LAW

Austin’s particular theory of law is often called the “command theory of law” because the concept
of command lies at its core. Positive law has a criterion of its own, namely, the philosophy of legal
positivism, which rests on the triune concepts of sovereign, command, and sanction. This simply
means that any violation of the command issued by the supreme political superior or the sovereign
is an infraction thereof and subject to sanction.

KELSEN’S PURE POSITIVE LAW

Hans Kelsen, an Austrian jurist and philosopher, reiterated Austin’s idea that “the concept of law
has no moral connotations whatsoever.” During the 20th century, Kelsen claimed that at that time,
the traditional legal philosophies were hopelessly contaminated with political ideology and

LECTURER: N. NEWAZ KARIM (ACCA AFFILIATE)

 CHAPTER 6 LAW & MORALITY
moralizing. Hence, Kelsen propounded the idea of a Pure Theory of Law, which is a theory of
Positive Law.

It is a general theory of law, not an interpretation of specific national or international legal norms;
but it offers a theory of interpretation. It is characterized as a “pure” theory of law because it aims
to focus on law alone. It only describes the law and it also attempts to eliminate or set aside
anything that is not law. Its aim is to free the science of law from alien elements.

Kelsen wanted to show his pure concept of positive law by eliminating any significance of the
norms of moral law to positive law. According to Kelsen, “the law is simply not pure when cluttered
with axiological norms.”

POSITIVE LAW VS. NATURAL LAW

Natural law is law that already exists and is waiting to be discovered. It refers to the
standard of conduct that transcends human authority. It is that system of moral and ethical
principles that are inherit in human nature and can be discovered by humans through the
use of their natural intelligence.

Positive law is law made by man. It is a system of rules established by the governmental
power of a state. Positive law can be based upon natural law, but generally this view of law
is opposed to the classical understanding of natural law.

Legal positivism is the view that law is fully defined by its existence as man-made law.
Function of positive law is to define the natural law and make it explicit; to make it effective
thru sanctions.

The positivist approach has a recurring problem of the separation of law from moral law
and natural law.

THANK YOU

LECTURER: N. NEWAZ KARIM (ACCA AFFILIATE)

 CHAPTER 6 LAW & MORALITY
1. State the differences between Natural Law & Positive Law. (8 MARKS)

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2. What is the “Command Theory of Law”? (4 MARKS)

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3. Why is Positive Law preferred over Natural Law?? (4 MARKS)

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LECTURER: N. NEWAZ KARIM (ACCA AFFILIATE)