Natural Law Vs Positivist Theory Of Law

Jefferson was strongly influenced by the belief that all humans have certain rights that cannot be taken away, and that these rights ought to be protected by a government. The resemblance between “the state of nature” and “the Declaration of Independence” are uncanny, Jefferson and Locke are consistently portraying the same ideas whether they mention the transition between the “Law of Nature” to the “Law of a Civil Society” or the concept of “life, liberty, and the pursuit of happiness” (Jefferson “Declaration of Independence”). The main similarities between the two works are the ideas that mainly focused on equality. However, some major difference that stands out between the two documents are that the Social Contract is based off an agreement between civilians and a higher power, such as a monarchy, where civilians would give up some of their freedom to live in a governed society. While the Declaration of Independence mentions how a monarchy did not protect the rights of the citizens and therefore, developed a government that was based solely on the will of its

In the Second Treatise of Government, John Locke introduces many innovative ideas, such as the government’s role in protecting its citizens’ natural rights, consent of the governed, and the right of the people to overthrow a government that did not properly protect their rights, all of which played an important role in the development of the French and American Revolutions. In the Second Treatise, one of the main ideas articulated by Locke is that a government is formed in order to protect the people’s natural rights, or as Locke states , “for the mutual preservation” of the people’s “lives, liberties, and estates, which [Locke] call[s] by the general name ‘property’ ” (Locke, p. 37). Locke considers these three rights to be the most valuable

Laws are universal, although they must be applied to particular cases with unique circumstances. In order to do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it. Presumably, a Justice’s judicial philosophy is at least somewhat associated with his/her political ideology. For instance, if a Justice has conservative beliefs, he/she is more likely to interpret and exercise law with “judicial restraint”–the theory of judicial interpretation that encourages judges to limit (or restrain) the exercise of their own power. Conversely, if a Justice has more liberal beliefs, he/she is more likely to interpret and exercise law with “judicial activism”–the theory of judicial interpretation that is suspected of being based on personal or political considerations rather than on existing law–or simply, broad(-er) interpretation.

Locke had stated that when an executive act for his own benefit, and not to serve the ends of the people. He “degrades himself” and becomes “but a single private person without power,” at which point he no longer has any right to rule over the people. Locke expresses the idea of rebellion against an unjust government. By giving the idea of rebellion, he also reveals that a human’s rights have changed over the years and that a man now has inherent rights. It was because of his declaration that the statement, “give me liberty or give me death,” become popular among the American people.

Locke's most important and influential political writings are contained in his Two Treatises on Government. The first treatise is concerned almost exclusively with refuting the argument that political authority was derived from religious authority. The second treatise contains Locke’s own constructive view of the aims and justification for civil government. According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect and complete liberty to conduct one's life as one best sees fit, free from the interference of others. This does not mean, however, that it is a state of license: one is not free to do anything at all one pleases, or even anything that one judges to be in one’s interest.

In strain theory, laws are equivalent to the accepted means that people can use to achieve their goals, which are described as a product of tradition and consensus. According to Frederick von Savigny, laws are “generalized statements of the tendencies actually operating, of the presuppositions on which a particular civilization is based” (Hagan 5). In this view, laws are almost indistinguishable from the commonly held morality found in a society. This theory on the nature of laws appears to match Merton’s understanding of how goals and methods of obtaining these goals are formed. An apposing theory on the creation of laws views them as a “product of conflict” (Hagan 5).

Locke’s definition of liberty depends on whether the person is in the state of nature, in which people are “without subordination or subjection” (Locke 101) or if they have formed into a commonwealth, or whenever “any number of men are so united into one society, as to quit every one his executive power of the law of nature, and resign it to the public” (Locke 137-38). In the Lockean state of nature, men have a “freedom to order their actions and dispose of their possessions and persons” (Locke 101). This freedom is still limited by what Locke refers to as the law of nature, or that “no one ought to harm another in his life, health, liberty, or possessions” (Locke 102). He also defines the liberty of the state of nature as “not to be under any will or legislative authority of man” (Locke 109). In his form of commonwealth, there is more limited freedom, in which liberty is to “be under no legislative power, but that established, by the consent of the commonwealth” (Locke 110).

In the period of ancient Rome, there was already a basic prototype of the concept of people's sovereignty and social contract in the natural law thought represented by Cicero. At that time, the idea of sovereignty was expressed as ‘the king's will of nature is equivalent to the

In his essay The Model of Rules I, Professor Ronald Dworkin argues against a certain theory of law he attributes to H.L.A Hart called “positivism.” While Dworkin argues against many tenets of the positivist theory, I will focus this essay on critical reasons against Dworkin’s argument against the legal positivist thesis that the law consist of nothing but rules. To do so, I will explain the necessary components of Hart’s theory of law required to understand Dworkin’s rebuttal. Then, I will reconstruct Dworkin’s argument against what I will classify “nothing but rules” claim, and I will ultimate claim Dworkin’s argument fails because his premise that states principles are extra-legal and cannot be explained as part of the categories is false. In particular, I indicate how principles can be legally binding like legal rules are, and I pick apart his reasons for believing that there are clear distinctions between laws and principles.

He says that it is both intensive and extensive in its reach and implications. Nevertheless, Aquinas’s use of the Aristotelian axiom, which says, “human beings are naturally political animals.” Aquinas gives logical proofs that prove that this is the case. Therefore the morality of the authority of the state’s government and law is controlled by the church, but when law and government are meant to comply not challenge one another. Aquinas did not agree with Augustine in the fact that “Augustine thought that government forms were not important since they were all temporary.”

Martin Luther King discusses many philosophical principles in the “Letter from a Birmingham Jail” that relates with Aquinas discussion about law. Most of Martin Luther King’s philosophical ideas have to deal with natural law. According to Aquinas natural law is promulgated by reason and also rational participation in the eternal law. But in “Letter from a Birmingham Jail” we can see how human law is connected to natural law always.

In hard cases, judges are not legislating, as Hart’s positivists assert, they are inducing based on principle. Judges have a duty not only to apply the rules, but also to make sure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are not making the rules but discovering them. [20] According to Dworkin understanding the role of the courts is to defend the rights of citizens from the likelihood of unfair rules or other circumstances in which the written laws do not satisfactorily defend their natural rights.

The law is an intriguing concept, evolving from society’s originalities and moral perspectives. By participating in the legal system, we may endeavour to formulate a link between our own unique beliefs and the world in which we live. Evidently, a just sense of legality is a potent prerequisite for change, enabling society to continue its quest for universal equality and justice. Aristotle once stated that "even when laws have been written down, they ought not to remain unaltered".

Positivist says that there is no obligation to follow a law morally. But in some cases for example (MURDER) it is good to obey law due to its moral content. Another place where it is good to follow law is to solve a coordination problem for example (driving on your right side). In most of the cases our own moral judgements helps us in deciding to obey law or not. The main issue here is how we should view the law morally, whether law in itself is generally a good thing?

1. Explain why it might be difficult to effectively study law following the positive transition. What are the advantages and disadvantages of a humanistic approach to the study of law? Studying law is relatively difficult as the degree holds much of the responsibilities to sort out the issue concerned with the society (ANU, 2014).