While is just. Proponents of Natural Law
While in theory a society which adheres to both Legal Positivism and Natural Law can not exist, aspects of both theories can be found in abundance within the U.S. government and penal system. Many U.
S. Representatives and Senators are particularly religious, and of the 45 presidents the U.S.
has had each one has been christian, despite the fact that the constitution maintains a separation between church and state. The constitution in its ideal practice would lend itself more to legal positivism but it is easy to see how natural law is a preeminent theory amongst U.S. lawmakers.
Whilst freedom of religion rightfully has a high standing amongst valued democratic ideals, it becomes dangerous and more of a grey area when U.S. lawmakers attempt to use the ideal in order to impose their beliefs which in many cases stem from ideas central to natural law. Legal Positivism is a more legitimate source of governance because it receives its legitimacy from pedigree and consensus of the sovereign rather than a supernatural source. Natural law theory finds its origins in morality of god, and what is right or wrong, these moral principles always have been and always will be the principles by which the universe is governed regardless of any laws we may create ourselves according to Natural Law. Natural Law theory centers around the idea that all things even those which are inanimate (e.g.
plants, rocks, planets) “have purposes or functions, and the “good” for any thing is the realization of its purpose or function”(New Mexico State University); good for human beings in this case is simply happiness and virtue in whatever we choose to pursue. Within the theory of natural law, the theory claims its legitimacy from just that, being natural, the fact that it is natural means that it is a byproduct of god, and for many, anything from god means that it is just. Proponents of Natural Law argue that even with no influence, humans would still create their own rules and morals about what is right or wrong, laws will be based on these morals or principles making them natural. The action of breaking a law is therefore unnatural.While the purpose of the law is to seek justice, there are many cases where the law harbors injustice rather than justice, for example laws allowing one human to own another as a slave, or preventing certain people to vote based on their race or gender; According to Aquinas these are not laws based in morality but a gross misuse of the law and in many cases just a form of violence. Natural Law is pleasant in theory, but in practice, impossible to prove legitimate, the fact of the matter is that not every person on the planet shares the same values, morals, or beliefs. While we can agree on more profound issues (usually), like one should not murder, or steal; what is to be said about the more trivial ones? For instance within the Hindu religion the cow is a sacred animal that should never be eaten, but in the U.
S. 33.2 million cattle were processed by the meat industry for beef in 2013 according to the NAMI (North American Meat Institute). What is natural law to one group of people may not be natural law to a different group of people. Logically Natural Law is inadequate as a way for society to choose what laws they will govern themselves by.
If by definition Natural Law is unchanging and inscripted in our hearts and consciousness, how is it that a law that can be unjust or just outright violent against another person come to existence in the first place if according to Natural Law theory all laws stem from god? Even if the true natural laws of god are moral and ethical, what is to stop a faulty man from running rampant. Hitler was able to convince an entire nation of his racist ideologies, and even was able to falsely justify it through religion as the will of god. This is only one major example, but it happens consistently on much smaller scales around the world, although the supreme court already established that women have the right to an abortion with Roe v.
Wade, many lawmakers still fight vigorously to defund planned parenthood and make it more difficult for women to access the care they need. There is no way of proving what is right or wrong with Natural Law, since the main source of the law, god, is ambiguous. Legal Positivism works in a way that is much more simple and much more rooted in logical grounds. According to Hart, laws should not come from principle, but rather pedigree, meaning that we should always have a concrete basis for how and why a law is a law, and we should all agree to it (generally speaking) for it to be a law.
In Harts explanation he claims that laws are a set of rules, and rules should not be based on principal because principles are not universal. The only people that claim principles to be universal are those that hold them, and there are hundreds of thousands of different religious groups that value different principles, so what is to happen when we don’t all agree? We must come to a consensus. This is a main part of the theory of legal positivism, since according to Austin “law is the command of the sovereign behind the threat of force”; a law can only come from the command of the sovereign; the command of the sovereign equals consensus. All legal cases are decided by applying an existing law or by an exercise of discretion. A perfect example of Legal Positivism is the supreme court, we give them the authority to be the last line in court of appeals because we agreed to, not for any other reason, and when the supreme court rules they usually do so based on previous precedents, and where there is no precedent, the decision is to the discretion of the judges on the supreme court, because we collectively as a society agreed to give them discretion.
Legal Positivism is the only viable way to form valid laws because it is objective, Natural Law by nature is subjective because it is based on moral principles, moral principles that people claim to know with all authority from a higher being, but in writings and interpretation from these religions, none of them can come to an agreement on one set of principles. If natural law were the dominating theory in global politics, the pope would be able to make most of the laws in some countries, the same way kings proclaimed their right to rule as god given. Many like Aquinas argue that Natural Law theory of good and evil is universal and all humans know inside right from wrong. While I do agree that as conscious beings we would come to are own conclusions about what good and evil are, they will always vary, and they will always be subject to change as times go along.
Maybe in nomadic times it was common practice for different bands of human tribes to raid each others settlements for any resource they could find, since at this moment in our history it may have truly been survival of the fittest, but in modern days if a country were to annex another like Russia did to Crimea for instance, the global community would likely condemn it immediately and impose heavy sanctions just like it did on Russia. The U.N. can do this for one reason and one reason only, because we collectively as a society agreed to give them discretion to act in this manner and execute the will of the sovereign when a country acts out of line. Even a hundred years ago this wouldn’t have been possible, it was only with the conception of the United Nations that this ability was gained by the security council.
Especially with the complexities of the current world, it would be terribly difficult to implement any form of Natural Law, due to the stark differences in principles even within a country. For instance just like we have separation of church and state inscripted into our constitution, we also have the tenth amendment which guarantees states rights. Laws like these have been created through legal positivism because of the fact that we can’t agree in principal. That is why we must have different state laws, and why we must legally have the ability to practice any religion which we please.
Democracies were founded on principles of Legal Positivism not Natural law. Natural Law justifies itself by saying that any law that is unjust or immoral is not truly a law and should not be followed, this is simply going in circles to cover up the mistake of claiming that all laws were principles of god only to have them in some cases be immoral laws. That is because it is difficult to prove anything came from god, and man is faulty. There are currently millions of people across the world and billions throughout history who have been subjected to the most terrible punishments for failing to follow unjust laws, they received no justice from Natural Law, millions are still incarcerated in America today based on failed war on drugs policies that unjustly incriminated thousands of primarily black and latinx community members. In the real world one can not claim that a law was never a law to begin with after it was agreed upon to be unjust because claiming that it wasn’t a law doesn’t change the fact that it was, claiming that it wasn’t a law also wouldn’t change the results of the law.
Just because we can all agree now that the laws enforced during the French Revolution’s reign of terror were immoral and unjust, it doesn’t mean they weren’t laws in existence, because they definitely were and people were killed by these laws. While these cases show the more extreme side of the nature of Natural Law these same inconsistencies can and do occur on all levels of lawmaking. Consensus and discretion, the basis of Legal Positivism are the only ways we can determine a law is unjust.