INTRODUCTION
Over the last century, the study of analytical jurisprudence has been filled with debates on what the law is and its relationship with morality. Central to these debates is the legal positivism ideology. This paper seeks to discuss whether the law can be fathomed without the reference to morality or its impact on society, by first introducing positivism, then assess its strengths and weaknesses by comparing its thesis with another debated ideology: natural law theory.
POSITIVISM THESIS
In positivism, the law is created without consideration of morality or its effect on society. Positivist John Austin concerns about whether the law exists and whether relevant authorities recognize it, rather than whether it is good or bad. He regards law as the “command of the sovereign backed by threat of sanctions”. Hence, Hitler’s “immoral” laws on the treatment of Jews would remain valid in positivists’ view as they were passed by a legally constituted government. Another prominent positivist, H.L.A, Hart formulated the “separation thesis”: a distinction must be preserved between law and morality. As MacCormick stated: “laws don’t exist by virtue of being just, and don’t stop existing by virtue of being unjust”.
AUSTIN’S COMMAND THEORY CRITICISMS
Austin’s command theory has received numerous oppositions. Firstly, Austin’s definition of sovereignty does not explain modern democracy. As Hart asserted, he ignored popular sovereignty and an electorate’s influence. Secondly, he believes that determinate human superior is the sole law maker, rendering the sovereign absolute. As MacIver commented, Austin disregarded many other elements, including the British laws, which was unavertable by the monarchy. Thirdly, Austin’s belief of threat being the sole factor behind laws, is rejected by Hart, as he overlooked laws that are less in nature of being backed by fear, such as the laws guiding contracts, wills and marriage. Hart further argued that even in criminal law, the wills of individuals are also a vital factor. As Harold Laski remarked, “individual conscience is the only true source of law”.
ASSESSING OVERALL POSITIVISM THEORY
A primary strength of positivism is their sophistication in studies. They only declare validity to conclusions that conform to their high level of empirical tests. Non-scientific value judgements like morality must be disregarded as they believe these would allow prejudice and inconsistency in their studies, as morality is judged by the will of individuals rather than the law itself, and everyone has their own set of moral standards.
However, it is normal human behaviour to unconsciously give way to emotions and personal judgement of morality. Therefore, it is arguable that law cannot be fully understood without basing on morality. For instance, the judiciary may insert own moral perspective when adopting mischief rule in statutory interpretation.
Perhaps the main weakness of positivism, regarding social sciences specifically, has been its over-emphasis on “methodological absoluteness”. The law is too sophisticated to be scientifically observed in their totality. For example, there is no all-encompassing scientific laws that can be applied to the social behaviour of the family unit. Thus positivists are barred from a whole hemisphere of human social experience regarded these individual life related matters.
NATURAL LAW THEORY
In contrast to positivism, naturalist Lon Fuller claimed that the law has its internal morality. Founder of natural law, Aquinas believes in non-scientific approaches and links natural law to God given morality, and holds that laws exist to uphold “common good” in a society of man-made corruption. Laws that do not work for the good are thus, bad laws, as Augustine of Hippo said: “an unjust law is no law at all”. For instance, the court of Nuremberg trials ultimately referred to natural law theory as they scrutinized “Nazis and Nazi Collaborators Punishment Law 1950” and said that the “criminal decrees of Hitler are not laws”.
APPLICATION OF POSITIVISM AND NATURAL LAW THEORY
There exist many instances of the law reflecting morality, like the basic criminal laws that forbid theft and murder, which is in line with our moral understanding that these are morally wrong. However, there are certain moral judgements which are not reflected within the british law. For instance, the UK does not have ‘good Samaritan’ law like Germany. Although there are cases which the law reflects morality and which the law does not, there is a strong debate as to whether the law actually needs to reflect morality.
For instance, the 1960’s Hart v Devlin debate after 1957 Wolfenden Report was published. They demonstrated how various concepts can be applied in the justification of behaviours. The report showed that criminalising homosexuality violates civil rights, which Hart agreed and added that the criminalisation would be ineffective as it would not change attitudes. However naturalist Devlin asserted that society should have a moral standard to preserve through laws. He stated that: moral indecency is punishable by laws set by ‘right-minded people’; liberty and privacy should be disregarded if it does not fulfil morality. Hart refuted, saying that ‘right minded’ cannot be judged. Furthermore, if the law is to be understood with morality, the act of deliberately undermining freewill and inserting prejudice into the legal system is already immoral itself.
CONCLUSION
Both legal positivism and natural law can be translated and adopted in various ways for whatever advantages. The law can be understood from a positivists position, without the reference to morality or its effect on society, to avoid prejudice and inconsistency in the legal system, meanwhile in practise, some say that the current british legal system still adopts the “right-minded man” approach, showing that morality and the impact on society is still being considered into the legal system. As seen in R v Brown, the Lords rejected consent as defense for sadomasochism on the grounds of protecting public morality. The morality debate since 1960’s continues today, and is showing that the law in reality is linked to morality and its impact on the society.
2019-4-29-1556565423