Naturalism vs Positivism Jurisprudence Instructor: Maam warda Submitted by Mehnaz khan llb eve Date 31,oct 2011

Law A body of enforceable rules governing relationships among individuals and between individuals and their society.

 Aristotle divides law into natural law and positive law. Natural law: is determined by our understanding of what we are, or our human nature. Positive law: is determined simply by the will of the lawmaker. Under natural law something is forbidden because it is wrong, being unsuitable to our human nature, properly understood. Under positive law something is wrong because it is forbidden. The two kinds of law are clearly quite opposite. Aristotle might say they are contraries.

Natural Law
Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children). In ethical philosophy, theology, law, and social theory, a set of principles, based on what are assumed to be the permanent characteristics of human nature, that can serve as a standard for evaluating conduct and civil laws. It is considered fundamentally unchanging and universally applicable. Because of the ambiguity of the word nature, the meaning of natural varies. Thus, natural law may be considered an ideal to which humanity aspires or a general fact, the way human beings usually act.

Natural law philosophers

Plato (idealism) human law should reflect universal truths, law should imitate nature (which is inherently good) (rationalism) through reason, humans should seek to discover the ideals which should then guide their actions human law should be based on the "reason of intelligent man" - but this law must never be in conflict with the laws of nature. (eternal law, natural law, and human law) eternal law was divine, natural law "imprinted" eternal law on humans, and "human law" trained people to follow natural law.

Aristotle

Cicero

St. Thomas Aquinas

Naturalism (philosophy)
Naturalism commonly refers to the philosophical viewpoint that the natural universe and its natural laws and forces (as opposed to supernatural ones) operate in the universe, and that nothing exists beyond the natural universe or, if it does, it does not affect the natural universe that we know. Followers of naturalism (naturalists) assert that natural laws are the rules that govern the structure and behavior of the natural universe, that the universe is a product of these laws and that the goal of science is to discover and publish them systematically.

 Metaphysical naturalism( metaphysics refers to the studies of what cannot be reached through objective studies of material reality Metaphysics is a type of philosophy or study that uses broad concepts to help define reality and our understanding of it. Metaphysical studies generally seek to explain inherent or universal elements of reality which are not easily discovered or experienced in our everyday life.) Metaphysical naturalism, also called "ontological naturalism" and "philosophical naturalism", is a philosophical worldview and belief system that holds that there is nothing but natural elements, principles, and relations of the kind studied by the natural sciences, i.e., those required to understand our physical environment by mathematicla modeling.

Metaphysical naturalism

Methodological naturalism
Methodological naturalism is concerned not with claims about what exists but with methods of learning what is nature. It is strictly the idea that all scientific endeavorsall hypotheses and eventsare to be explained and tested by reference to natural causes and events. The genesis of nature, e.g., by an act of God, is not addressed. This second sense of naturalism seeks only to provide a framework within which to conduct the scientific study of the laws of nature. Methodological naturalism is a way of acquiring knowledge. It is a distinct system of thought concerned with a cognitive approach to reality, and is thus a philosophy of knowledge.

Aristotle
Aristotle is often said to be the father of natural law. Like his philosophical forefathers, Socrates and Plato, Aristotle p osited the existence of natural justice or natural law.of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.

Thomas Aquinas was the most important Western medieval legal scholar Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 7 March 1274) was a philosopher and theologian in the scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. Aquinas distinguished four kinds of law: eternal, natural, human and divine. Eternal law refers to divine reason, known only to God, God's plan for the universe; man needs this, without which he would totally lack direction. Natural law is the human "participation" in the eternal law in rational creatures and is discovered by reason. Divine law is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good.[19] Natural law, of course, is based on "first principles": . . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . .

Thomas Hobbes
Thomas Hobbes was an EnglishEnlightenment scholar In his treatise Leviathan, (1651), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian[21] and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, "solitary, poor, nasty, brutish and short". It is commonly commented that Hobbes' views about the core of human nature were influenced by his times.

Lon Fuller
Writing after World War II, Lon L. Fuller notably emphasised that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made.

John Finnis
Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. In particular, the older natural lawyers, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence. But modern natural lawyers, such as John Finnis claim to be positivists, while still arguing that law is a basically moral creature.

Positive Law
Positive Law: The written law of a particular society at a particular point in time (e.g., the U.S. Constitution, the Texas Securities Act, the Internal Revenue Code, and published judicial decisions). the body of legal theory which views law as the product of human thought and will.

Positive Law Philosophers

Thomas Hobbes law must be made by man to protect man from his own natural brutality, law must maintain order and strength in a society (supporter of Utilitarianism) the purpose of law and government is the greatest advancement of human happiness (founder of Utilitarianism) the purpose of law and government is to provide the greatest happiness for the greatest number of people law as a system of coercive orders; Primary Rules, Secondary Rules (rules of recognition, change, and adjudication)

John Austin

Jeremy Benthem

H.L.A. Hart

Positivism
Positivism is a philosophical approach, theory, or system based on the view that in the social as well as natural sciences, sensory experiences and their logical and mathematical treatment are together the exclusive source of all worthwhile information. Introspective and intuitional attempts to gain knowledge are rejected. Though the positivist approach has been a recurrent theme in the history of western thought from the Ancient Greeks to the present day, the concept was developed in the early 19th century by the philosopher and founding sociologist, Auguste Comte.

Jurisprudence
In jurisprudence, "legal positivism" essentially refers to the rejection of natural law, thus its common meaning with philosophical positivism is somewhat attenuated and in recent generations generally emphasizes the authority of human political structures as opposed to a "scientific" view of law.

Antipositivism and critical theory

Antipositivism and critical theory At the turn of the 20th century, the first wave of German sociologists formally introduced methodological antipositivism, proposing that research should concentrate on human cultural norms, values,symbols, and social processes viewed from a subjective perspective. Max Weber argued that sociology may be loosely described as a 'science' as it is able to identify causal relationships

Modern positivism
Modern positivism In the original Comtean usage, the term "positivism" roughly meant the use of scientific methods to uncover the laws according to which both physical and human events occur, while "sociology" was the overarching science that would synthesize all such knowledge for the betterment of society. approach to both research and theory construction in contemporary sociology, especially in the United States. The majority of articles published in leading American sociology and political science journals today are positivist (at least to the extent of being quantitative rather than qualitative). This popularity may be because research utilizing positivist quantitative methodologies holds a greater prestige in the social sciences than qualitative work.

Logical positivism
Logical positivism (later and more accurately called logical empiricism) is a school of philosophy that combines empiricism, the idea that observational evidence is indispensable from knowledge of the world, with a version of rationalism, the idea that our knowledge includes a component that is not derived from observation.

Positivism in science today

Positivism is elsewhere defined as "the view that all true knowledge is scientific," and that all things are ultimately measurable. Positivism is closely related to reductionism, in that both involve the view that "entities of one kind... are reducible to entities of another," such as societies to configurations of individuals, or mental events to neural phenomena. It also involves the contention that "processes are reducible to physiological, physical or chemical events,"and even that "social processes are reducible to relationships between and actions of individuals," or that "biological organisms are reducible to physical systems."

Criticisms
Max Horkheimer and other critical theorists criticized the classic formulation of positivism on two grounds. First, they claimed that it falsely represented human social action. Positivism ignored the role of the 'observer' in the constitution of social reality and thereby failed to consider the historical and social conditions affecting the representation of social ideas. Positivism falsely represented the object of study by reifying social reality as existing objectively and independently and labor actually produced those conditions. Secondly, he argued, representation of social reality produced by positivism was inherently and artificially conservative, helping to support the status quo, rather than challenging it. This character may also explain the popularity of positivism in certain political circles.

 Positivism has also come under fire on religious and philosophical grounds, whose proponents assert that truth begins in sense experience, but does not end there. Positivism fails to prove that there are not abstract ideas, laws, and principles, beyond particular observable facts and relationships and necessary principles, or that we cannot know them. Nor does it prove that material and corporeal things constitute the whole order of existing beings, and that our knowledge is limited to them.

Legal positivists
Positivism simply means that law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end. Secondly, that law is nothing more than a set of rules to provide order and governance of society. The Classical version of positive law theory is John Austin's (1797-1859)"command theory.

Natural Law Vs. Positive Law

Throughout history many philosophers have come to be linked to either branch of law. Philosophers such as Aristotle advocated Natural law, while others, such as Thomas Hobbes, supported Positive law. Each provided strong notions that helped form modern day law. Aristotle believed that because humans are capable of a higher level of thinking that they could therefore judge for themselves. This is also known as rationalism. He was committed to his belief that because of our higher level of thinking, humans are capable of obtaining true happiness. He believed that the sole purpose for law was to make people happy. Any law that served towards the betterment of the people was therefore just, and any law that made people unhappy was unjust and ought to be disobeyed and debated over in order to satisfy all. He felt that the reason behind unjust laws was their grounds were flawed and were unable to serve justice.

 Aristotle's perception of justice was associated with laws that made the majority happy; only if the people were happy could justice ever be served. This view contrasts that of Thomas Hobbes whose standpoint reflected Positive law. In conflicting with Aristotle's belief that humans can govern themselves due do rationalization, Hobbes believed that humans are violent and war like and that they have a right to all things. He was dedicated in his theory that Natural law grants too much freedom to humans. Hobbes argued that a governing body was necessary to control society by enforcing laws and deciding through law what was morally right and wrong.

Conclusion
Natural law, however, is more fundamental. Positive law cannot change or abrogate natural law. Positive law is concerned with human activities or behaviour that natural law has not ruled on. Positive law, as St. Thomas says, can only add to natural law; it cannot subtract from it. Thus, another way of looking at the division of law into natural law and positive law is to say that postive law is law that is additional to natural law.

Is natural law necessary for identifying positive law?

No one doubts the existence of positive law, but we wonder about its rightness. No one doubts the rightness of natural law, but many wonder if it actually exists. PL exists even when unjust, but for NL to exist it is not enough to be just. One way of comparison between them may be articulating the notion of the existence of law or its being in force we need to take a look at the history of the main conceptions of the relations between PL and NL. The great legal cultures were built up around some general idea of what law should be like. For the Romans, PL did not consist primarily in an arbitrary act of imposition of rules of conduct, but in a set of rules deriving from the very nature of social relations. For this reason the jurist Gaius (2nd century AD) could say that the first source of law is not statute but nature. Legal science itself is not knowledge of laws, but of things, i.e., of right things, that is to say of the normality of social relations.

 These are only a few of the many examples of how in fact an idea of NL has influenced a general understanding of PL and its contents. However, the fact that a conception of NL has inspired a PL culture does not mean that NL itself is relevant for a PL system. Indeed, we may think that this is the role and the task that the meta-legal has always had in the formation of legal rules.

Three faces of the relationship between positive and natural law

The relevance of NL might be detected within three main profiles of legal theory: the foundation of the obligation to obey legal rules, the content of legal rules, and the form of legal rules themselves. For each of these three points we can ask ourselves whether we need to have recourse to NL.

Thank you