Legal Positivism Versus Natural Law

Discussion in 'General Philosophy' started by pedro3131, Feb 14, 2011.

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Positivism vs Natural Law

Positivism 0 vote(s) 0.0%
Natural Law 5 vote(s) 100.0%
  1. pedro3131 Running the Show While the Big Guy's Gone

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    Rule of law follow these five basic principles:
    1. Gov't Must operate under the law
    2. Gov't must regulate society through a system of general and authoritative rules
    3. The general and authoritative rules should give individuals fair warning: the rules should be (a) made public, (b) reasonably clear in meaning and specific in what they prohibit, (c) in force for a reasonable period of time, (d) applied prospectively, (e) applied impartially, (f) possible to comply with, and (g) enacted in accordance with preexisting legal rules
    4. All persons must be given due process
    5. The sovereign people ought to establish constitutional gov't and abide by its laws

    There are two basic interpretations two how you apply and where you derive the law from within that framework. The first is Legal positivism, the second Natural law.

    Legal positivism is basically the belief that you can only look at laws and regulations in making determinations in the so called "hard cases" and that morality should have no bearing.

    The various strands of Natural law theory all stipulate that you need to take some account of morality or a higher sense of justice or perhaps the desired intent of a law when making legal decisions.
  2. Link NO SWAG

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    Rule of law? Neither.
  3. pedro3131 Running the Show While the Big Guy's Gone

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    Care to explain?
  4. Link NO SWAG

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    The law is determined by ancient religions.
  5. pedro3131 Running the Show While the Big Guy's Gone

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    So then natural law... The basic argument is is law formulated by past legal decisions and the word of the law... Or do you take into account "what is right" when making decisions, and in so doing evoke a kind of moral or deeper justification...
  6. Kalalification Guest

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    I chose natural law, though I'm conflicted about the choice. I think it's true that certain rights are granted to us by birth. However, I also believe that in a "vacuum" there would be no rights, as they are exist solely because we are required to interact with other people. Negative rights are certainly guaranteed by birth, but the concept of rights stems from human thought, not the natural world. For the purposes of an internal discussion I'd say it's obvious that we are guaranteed a few rights simply by virtue of being humans. But the overwhelming majority of law is focused on positive rights that are, idealistically, undesirable. Practically it makes sense to enforce a lot of these positive measures because it simplifies things to a state that's manageable by a limited government.
  7. pedro3131 Running the Show While the Big Guy's Gone

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    I pretty much agree with that, but go further to say that the so called natural rights are all relative to your cultural upbringings. It's very common to evoke natural and abstract rights in my field, but when you think about it, one man's perceived freedom or right is another mans chains.
  8. rmcgourthy New Member

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    What about the true Negative bases of the legal profession.
  9. RoyalAnarchist New Member

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    I am for rule of law, for it is most Libertarian.

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