Natural V. Positive Law Essay

1154 words - 5 pages

When an average person is asked ‘what is morally correct?’ most respond with an answer that requires each person to follow the laws of the country in which they are living. This is at least the case in modern American society, where your “moral standing” depends ultimately on whether or not you conform to the laws outlined by the government. Regardless of what one’s individual beliefs are, religious or not, morality is judged on how well you blend into your specific societies definition of what is good, evil and indifferent, while law is just a bunch of rules and regulations to divide up power amongst the people in order to predict the future and keep civil peace.
The difference between Positive Law and Natural Law is fairly simple. Positive Law focuses on the man-made laws that either give or take away specific privileges of the individual in each society. For example, the right to bare arms in the U.S. constitution is man-made in order place freedoms and restrictions on an individual who wants to carry around a firearm. On the other hand, Natural Law focuses on the god given, inherent rights of the individual and are not created by an act of legislation.
Natural laws are universal and apply to everyone, no matter what society you belong to. For example, everyone has the universal right to breath air in order to stay alive. Although natural and positive law have two different meanings, they both rely on the assumption that in order to have civil peace each individual must have the promise of a reward for whatever is deemed as “good” behavior.
The main argument that circles natural law and positive law is whether or not morality can be distinguished from law, and if it can is it then justifiable to criminalize those who are acting immorally. Natural law theorists, such as Lord Devlin argue that law is simply based off the morals of the majority opinion in that society. The ask the question “If a society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?” (Dworkin 211) Those who firmly believe in natural law and agree with Lord Devlin would answer ‘yes’ to this question.
This then brings up another question of where the principle line lies within the criminalization of immoral acts. Devlin answers this by arguing that what the state has a right to regulate and what it should regulate is not a matter of principle but instead is a matter of the written law. If there is a law against an immoral act then the state has a right to criminalize the individual, however, if the act is immoral but is not against the law then even though the state should criminalize the individual it is not the state’s right to. Natural law theorists believe that the enforcement and criminalization of the law must be weighed with the severity and pros and cons of the immoral act. There needs to be a common morality amongst every individual in the society in order to keep society alive, letting even the smaller immoral...

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