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Natural Crime Vs. Legal Positivism Essay

2932 words - 12 pages

It has long been understood that there is a difference between law and justice. The Robinson text describes Legal Positivism and Natural Law and indicates the differences between the two are the unjust positive laws. This essay will examine and understand these differences on a very basic level. The essay first looks to understand what positive law and natural law mean, and then look at what is meant by the law of nature.
In my reading, positive law is all types of laws recognized by a "political authority such as a legislature or an administrative agency." As I understand it, constitutional, statute and common laws fall into this category. Also included here are administrative agency rules and executive orders. There are positive laws on a local, state, federal, and even a global level. Rules and laws that do not fall into this category are rules that are established by an authority that is not recognized by the governed. An example of this would be the bylaws of a social club like the Elks or Masons Club, whose rules are recognized by the members, but not by society at large. Another example would be a law passed in California to a Coloradoan. Based on this understanding, positive law is defined by the rules and laws to pertain to a particular individual, and may be different for each person.
Natural law is the subset of Legal Positivism that is just. Webster's dictionary describes the word just as, among other things, fair and deserved. Kant states that "Roman statesman Marcus Cicero described natural law as 'the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite.' Because this higher law determines what is ultimately good and ultimately bad, it is a criterion for evaluating positive law." Using words like "fair," "deserve," and "ought" takes law from a more tangible form to a subjective realm. It is much easier, in some cases, to understand that a law exists, than to determine if it is fair or "just." Also, fairness will change with people, place, situation and time. This is expressed much better by Oliver Wendell Holmes:We practice law, not justice. There is no such thing as objective 'justice' which is a subjective matter. A man might feel justified in stealing a loaf of bread to fill his belly; the baker might think it most just for the thief's hands to be cut off, as in Victor Hugo's Les Miserables. The image of justice changes with the beholder's viewpoint, prejudice or social affiliation. But for society to function the set of rules agreed on by the body politic must be observed - the law must be carried out." (Holmes, 1897 Harvard Law Review 457, 10)Furthermore, what may have once been considered fair, may be considered otherwise later in time. Examples of this are the Jim Crow laws, segregating black and white people on public transportation, schools, restaurants and other public places. In the 21st century, this idea seems almost absurd. Also, these laws were isolated to the Southern...

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