Critically Evaluate The Main Principles Of Legal Positivism And Natural Law.

3538 words - 14 pages

The history of "Natural Law" is extensive. Classical Greek Naturalism was the major doctrine until Christian Theologian Doctrine replaced it. As societies have moved away from the church "Natural Law" has been to some extent superseded by Positivism. We have been asked to critically evaluate these two schools of Jurisprudence.Greek NaturalismThe classical Greek philosophers believed that natural law was a moral order, which was superior to human law and one that knows no bounds either in space or time. It decreed that people should be communal and that man-made regulations for communities were inferior to nature's laws.Aristotle (384 -322 BC) believed that humans were inherently good and teleological, designed by nature with specific goals in mind. Anything, which interfered with this, should be considered to be bad. He spoke about the relationship between fact and value, what is and what ought to be. Cicero in the first century BC perpetuated these viewsJudao-ChristianChristian Theologians such as Thomas Aquinas (1225-1274) believed that God lay down the rules for society and that these were superior to temporal law. Man-made law should accord with God's law. He argued that there were four kinds of law: Eternal, Natural, Human and Divine Law.Aquinas confirmed St Augustine's premise that there is no law unless it is just . If human law conflicts with natural law according to Aquinas it is not lawful and may be disobeyed.Natural law jurists argue there is an intrinsic link between law and morality. However, positivists argue it is flawed because it is based on prejudice and value judgments. Homosexuality in some societies is considered unnatural so is immoral. Similarly it is morally wrong to kill yet in certain circumstances there are exceptions, e.g. wars. The Abortion Act 1967 is an example of a Positive Law versus Natural Law argument. To pro-life supporters it is morally wrong but to Positivists it is lawful, see R v Smith (John). Another example is the Gillick v West Norfolk and Wisbech Area Health Authority where a mother brought a case in respect of doctors advice about the contraception pill to under sixteen year old girls.Thomism maintained the status quo; this left it open to revolutionary argument designed at radically changing society. If the social and political system of a country does not afford basic human rights and protection then that "legal system" could be said to lack morality. Rousseau . (1712-1778) argued for developing peoples rights and potential. Hobbes (1588-1679) for a "the social contract" whereby citizens gave up some liberty for protection and Locke (1632 -1704) for the respect of property rights. This became known as "Enlightenment Naturalism or "The Age of Reason". The theories elucidated that individuals get together to form a social group and make rules, which benefit the majority within that group.More recently the European Convention on Human Rights and Fundamental Freedoms is based on natural law principles....

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