Natural Law Vs Positive Law

Since the Greek era, there has been a distinction between positive law and natural and that brought along several supporters of each theory. The distinction lies in the fact that positive laws are human-made laws that oblige or specify a certain action, while natural laws are inherent rights derived from nature and it is often associated with morality; unlike positive law, where positivists make it clear that there is a difference between morality and law. One can say that positive law is concerned with what the law “is”, but natural law is concerned with what the law is “ought to be”. Another distinction that is often made, is that legal positivism is concerned with the validity of the law and not whether it is just or not. A law that is implemented by the sovereign-the legal authority in a political state-should be considered as a valid law as long as the law is issued by this particular authority and that this authority followed the right procedure.

John Austin was a noted English theorist who influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. He was a prominent legal theorist who argued against natural law and the strong connection between law and morality. Austin argued that there is a difference between moral law and positive law in which moral law is a law of “ought to be '' and while positive law is the law which is actually implemented. He believed that human legal systems should be value-free and factual, and through that, he was trying to transform the law into a true science. Austin believed in his command theory, in which he claimed that rules are orders with punishment.

According to him, these commands involve three things: a desire about one’s behavior, that desire being expressed, and along with that a sanction in which is the person being threatened for non-compliance. He then identified a difference between rules and a normal command, he said that rules are general commands that can be applied to an entire population, as opposed to an individual command that is applied to only one person. Rules have to be instated in some way, and Austin believed that these rules are laid down by a sovereign. He believed that all independent political societies should naturally have a sovereign. He believed that positive laws have to be imposed on the part of a sovereign to a member or a group of members in that state, and that obedience from the members is habitual, which means that it should be continuous, and here comes in Austin’s belief that laws are addressed from superiors to inferiors. Austin, then highly associates laws with punishment, he believes that the law can not be laid down unless the person who violated it is punished, and this is what he calls sanctions. According to him, receiving command is the same as being threatened by a sanction which is the same as having a duty to do.

Another prominent Austinian theory is the theory of sovereignty. He claims that sovereignty is indivisible. He believed that if sovereignty is divided upon several legislative bodies then this is destructive and that if this happens, the original sovereign should resume its former powers. This goes along with his theory that the sovereign is “The bulk of the given society that is in the habit of obedience to a determinate and common superior. That superior is not in the habit of obedience to a determinate common superior”. Accordingly, this power can not be divided among several bodies, because there will be no ultimate power that the members of society will be obliged to follow their commands. Moreover, he believed that this sovereignty cannot be legally constrained because no one can coerce themselves into obedience.

Another leading philosopher in positive law is HLA Hart. He criticizes old positivist theorists and attempts to explain positive law from a different perspective. Hart emphasizes on the fact that he is against any model that is simply based on coercive orders and that is very similar to criminal law, where laws are rules that the people need to abide by, and if they fail at doing that they will be appropriately punished by set sanctions. He also, says that this way of interpreting and applying the law is inapplicable to different branches of the law, such as the public and private law, that include laws about wills, contracts, and marriages, the jurisdiction of the courts, or the powers of the legislature. His argument is that laws are social rules, they regulate conduct, and they do not essentially threaten members of society. To differentiate between the kind of rules he is suggesting and moral rules, he says that laws can be divided into two sections, primary rules, and secondary rules. “For a citizen with an internal perspective to the law, the existence of a primary rule will create an obligation for him or her to behave in a certain way”. However, he also stresses on the fact they are not commands, they do not threaten members of society. Then there are secondary rules; which are rules closely related to primary rules. They are the rules that moderate and regulate primary rules, and according to Hart primary rules are valid as long as they follow secondary rules.  

Hart then goes on and divides secondary rules into three different types: rules of recognition, power conferring rules, and rules of adjudication. The purpose of Rules of recognition is to elucidate traditional law, by giving some criteria for primary rules and it allows us to identify whether a law is valid or not. Rules of adjudication are there to ensure the efficiency of the primary rules, by countering the inefficiency of private enforcement and generally setting up the procedure for the application of primary rules. Then there are rules of change, which are rules that make it explicit how the law can be changed and by who and through what specific procedure.  

Hart also does recognize some content of natural law which has been argued to be different in order to match with his theory on legal positivism, which usually negates natural law theory. “Hart is compelled to find and oppose the ‘orthodox thesis’ of ‘classical theories of Natural Law’, especially the ‘most extreme’ version associated with ‘the Thomist tradition of Natural law’”.  Hart believes that despite the fact that laws should not be associated with morality, there are rules which are imperative to human beings living together. Hart agrees with natural law because he does not think that positive laws that go against justice should be obeyed blindly. “He is deeply sympathetic to what he calls ‘the core of the good sense of natural law’ and believes that law should continually be subject to moral scrutiny”.  One feature of Hart’s natural law theory is the fact that human beings are vulnerable, and to protect human beings the legal system should develop that prohibits humans from harming each other. Secondly, Hart believed in the Hobbesian notion of approximate equality, where all humans are equally the same in power and intelligence because they unite to defeat opponents. For Hart, the core of the legal and moral obligation is the fact that humans have to compromise their desires and conflict of interest easily. Thirdly, he believes that law and morality oblige us to look beyond our interests and to live together peacefully in the same society. Fourthly, Hart claims that the fact that there are limited resources dictates our actions, and as a result, each person is legally entitled to possess. Through these principles, Hart demonstrates his belief that morality is at the core of all legal systems.

Even though Hart and Austin are both positivists, they vary greatly in their theories of positive law, to the extent that a big portion of Hart’s portion The Concept of Law is a criticism of Austin’s theory. First criticism by Hart of Austin’s theory, which is one of the main differences between both theories, is the fact that Austin claims that laws are commands backed up by sanctions in case they are not followed, while on the other hand, Hart says that law are obligations that come from rules that are enforced and they stem from rules of morality. Hart’s criticism of Austin’s theory of command can be compared to the idea of the theory of general deterrence, which is a theory in criminal justice which seeks to curb illegal conduct and that theory in itself is coercive. As a result, Hart came up with the theory of law being a moderator of social actions more than it being a way of punishing members of society in case they go against it.

 Another criticism of Austin that Hart pointed out and is a difference between both, is the fact that Austin failed at distinguishing between “being obliged” to do something by a threat and “having an obligation” to do it. There lies the difference between the legal theory of Austin and Hart. Austin is a firm believer in sanctions and the way to implement the rule is through punishment, that obligation is highly related to the threat. However, Hart makes this distinction, between being obliged because you are threatened and feeling this obligation and wanting to abide by it. I think that this creates more of a harmonious society than a fearful one; where everyone feels the need to avoid doing certain actions because it is an obligation as opposed to just not doing it to avoid the consequences. An example of that, “If a gunman orders Smith to hand over his money, threatening him with bodily harm if he fails to comply, then (a) Smith is obliged to hand over the money (b) he must obey the gunman's order or (c) suffer pain if he does not. So (d) the gunman has the power to compel Smith's obedience”. This is how Hart views Austin’s theory of command.

Another point of difference is how each of these two philosophers theorized sovereignty. The first of many differences is the succession of law-making powers. Hart believed in that sovereignty should accommodate succession; that the laws that are being set should be implemented easily by the following sovereignty. So, his theory of primary and secondary rules that are set in the constitution and complement each other makes it possible for a new rule to come in and lead in the same way the previous one did because the laws within the legal system do not change. However, for Austin, it is a different issue, one that did not accommodate the succession of sovereignty as a result-essentially-of his theory of command. “When Rex I dies there will have to be an unbridgeable gap in the legal system. There cannot be a legal system until Rex II establishes his authority through a pattern of obedience-the relevant fact. Once the sovereign is dead whatever commands he had issued with regard to his own succession are already obsolete”. As a result of the laws being tightly related to sanctions, that are implemented by the state, there cannot be a succession of that legal system, because rationally each sovereignty that will take rule will decide on different sorts of commands and will decide on how the sovereign should abide by them differently. 

Another point of criticism of Austin’s theory that highlights the difference between both legal theorists is the fact that the sovereignty in Austin’s theory is the fact that “a body only exists and acts according to rules of procedure and composition, such rules cannot (to begin with) be the result of actions of that same sovereign body”. This means that Austin’s theory cannot accommodate the idea of a sovereign body, because there need to be constitutional rules that decide what the sovereignty is and these constitutional laws cannot be issued by the same sovereignty that these rules are on, as a result of that law is not able to account for the body in non-legal terms.  If these rules are issued by the same body then this essentially invalidates these rules, because they can be subjected to criticisms of bias. “For a body to exist there must be constitutional rules that determine, first, who is a member and, second when and if the various actions of the members of the group do constitute an act properly imputed to the body”. If we compare this theory to Hart’s, it is very possible to say that Hart’s theory on sovereignty is more concrete because the union of primary and secondary rules contributes to the formation of that sovereignty. This union helps understand and decide on the actions of constitution-making or law-making of the sovereign. This is a point of contention between Hart and Austin among the array of differences between both theorists.

In conclusion, Hart and Austin are both very prominent positivists that theorized about similar issues but resulted into very contrasting theories; from theories on law-making, sovereignty, constitutional laws and from that comes a variety of theories they ways laws should be created, implemented, abided and in cases of disobeying the law what are the actions that should be taken. A huge portion of Hart’s theory was focused on the criticism of Austin’s and Hart himself has received a lot of criticism for his theory, especially because he did recognize some content of natural law and it can be argued that this does go against positive law, which is the main thing that he theorized about. A lot of what Austin argued, is not only criticized by Hart but by also a lot of other philosophers. The core of this essay is to acknowledge the difference between natural law and positive and how even among positive law theorists lie major differences in their interpretations of it and perceptions of its applications.


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07 July 2022
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