Natural Law vs. Positive Law : Comparison of Contents and Functions

Natural Law vs. Positive Law Comparison of Contents and Functions A TERM PAPER SUBMITTED ON JIL 121INTRODUCTION TO LEGAL METHODS(2014/2015 SESSION) FACULTY OF LAW, UNIVERSITY OF LAGOS. BY 130601052  Natural Law vs. Positive Law: A Comparison of Outlook and Content Every generation, it is said, finds new reason for the study of natural law Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy [1936] published by Liberty Fund, Inc. -Heinrich A. Rommen The above assertion underscores enduring nature of the running battle between natural law and positive law. From the beginning of the organized society, natural law theorists and legal positivists have differed in their opinion of what is law. The arguments has always centered on the validity or the legitimacy of a law.The questions have always been; what makes a valid law? What is a legitimate source of law? Of what effect is the content of a law to its validity, and, or general acceptance?Or posing the question more directly; which is more important to the question of legitimacy of a law; its source? its content? or its effect? This term paper will attempt a comparison of the two theories of law, explain and differentiate between positivism and natural law and how these schools of thoughts perceived the meaning, function and purpose of law and ascertain whether there exist any points of convergence. Natural law Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated. The position of the natural law theorists on the question of what is lawis summarized by the following statement of Cicero in the 1st Century B.C; “True law isright reason in agreement with Nature; it is of Universal application, unchanging and everlasting, it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is asin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or people; we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in future, but one eternal and unchangeable law will be valid for all nations for all times, and there will be one master and one ruler, that is God over us all, for He is the author of this law, its promulgator, and its enforcing judge.” Cicero, De Republica III, xxii,33 as cited in “Introduction to Legal Method, Ed. AbiolaSanni, OAU Press Ltd(2006) Natural law’s content is set by nature it therefore has validity everywhere .i.e. universal. The laws arise through the use of reason to analyze human nature and deducing binding rules of moral behavior. This theory is built on the idea of perfect law based on equity, fairness, and reason, by which all man-made laws are to be measured and to which they must (as closely as possible) conform. Natural law theory has heavily influenced the laws and governments of many nations, including England (Magna Carta 1215) and the United States (Declaration of Independence 1776). It has also informed the publications of international legal instruments like the Universal Declaration of Human Rights (1948) and African Charter on Human Rights (1981). Positive law Positive law is law made by human beings. Specifically, positive law may be characterized as law actually and specifically enacted or adopted by proper authority for the government of an organized society. A body of man-made laws consisting of codes, regulations, and statutes enacted or imposed within a political entity such as a state or nation. According to the legal positivists, law is only positive law; that is statute law and such customary laws as recognized by the state. positivism characterizes as law to be applied by the judges, and alone to be considered by jurisprudence, those norms only which are enacted as such by the factual and published will of the legislative organ in due conformity with constitutional law, or which are explicitly or impliedly admitted by it Dworkin, Ronald M., “Lord Devlin and the Enforcement of Morals”(1966). Faculty ScholarshipSeries . Paper 3611’ Yale Law School.. Positive law sets the standards for acts that are required as well as those that are prohibited and penalties are usually prescribed for violation of positive law. Those who are physically present where the positive laws have governing power are typically required to obey such laws. The positivist is ever looking for the written or actually enforced factual decisions of the will which converts potential norms into actual norms. He is concerned with the formal origin of law, with the source of the norms and its manner of formation, not with its content. The question of whether something can be wrong in the law itself is meaningless to the positivist. Brian Bix, On the Dividing Line between Natural Law Theoryand Legal Positivism, 75 Notre Dame L.Rev.1613(2000)His position on the question of what is law is summed up by John Austin in one of his famous works, The Province of Jurisprudence Determined, thus; “the existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or not be conformable to an assumed standard is a different enquiry. A law which actually exists is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation” John Austin, The Province of Jurisprudence Determined, 157(Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832) . Thus positive law sometime leads to manifest absurdity, as were the case inOkumagba v Egbe (1965) I All N.L.R. 62 , where the court had to adhere to the strict letters of the law, allowing the accused to get away with mischief. The Contrast Natural law is typically based on moral principles, natural order, and ethical code that people share as human beings. It is inherent and may not require government enforcement. On the other hand positive law is the legal rules that people are typically expected to follow; it is artificial order and consists of rules of conduct that people place upon each other. Legal positivists are of the view that for a law to be valid, it should be codified, or written down, and recognized by some type of government authority. They reject the theory that people will obey inherent law based on moral values. Positivists espouse relativism and subjectivism with respect to what is proper or improper. Natural law opposes the idea that moral law is relative, subjective, and changeable. Thus, in his discussion of the Mosaic Law, Thomas Aquinas says that the norm “you shall not kill” is of the natural law because it has intrinsic and universal moral force while the norm “you shall not wear garments made of wool and linen woven together” is of the positive law because it lacks intrinsic and universal moral force. The Summa Theologica of St. Thomas Aquinas, Second and Revised Edition, 1920. Literally translated by Fathers of the English Dominican Province. Online Edition Copyright © 2008 by Kevin Knight Finally natural law exists perpetually, but positive law is also self- preserving in that it prescribes rules for its development. Helen Silving, The Twilight Zone of Positive and Natural Law, 43 Cal. L. Rev. 477 (1955). Possible convergence The truth is that in spite of the running battle for supremacy, experience has shown that both the natural law and positive law can co-exist within the same framework. Though the Natural Law Theorists will insist a positive law conforms to certain moral standards in order to be valid, the history of law has revealed that in concrete instances the concept of natural law either prevail or lose. Where they prevail, they become part of positive law and are thenceforth also acceptable to the positivists. Helen Silving, ibid In other instances too, it has been shown that positive law alone is not sufficient to govern modern society; that the system of positive law cannot take care of itself alone, even with the supervision of certified professionals. Sometimes the legal institutions themselves are made the object of non-legal power struggle The case of the former Chief Justice of Nigeria, KatsinaAlu and the President of the Court of Appeals, Ayo Salami is a case in point where the courts were made the object of power tussle between the ruling party and the opposition. . In such instances appeal is made to natural justice in determining what is right or wrong. In conclusion therefore, modern law derives legitimacy neither from legality nor validity, but from purpose. Thus the end or object of a law becomes the criterion by which it is judged right or wrong, or valid or invalid. And how well it serves its purpose determines its legitimacy or otherwise! 6