NATURAL LAW

Natural Law & Positivist Legal Theory

Natural Law & Positivist Legal Theory

Having attempted to manage without these distinctions in The Concept he soon found that life became far too confusing without them. Hart then shows how completely confused he is on this issue by noting in his recent work, 'Finnis's flexible interpretation of natural law is in many respects complementary to rather than a rival of positivist legal theory.

The received view of general theories of law, theories about the nature of law rather than the law of a particular legal system, divides these theories into two camps: those that find a necessary relationship between the nature of law and morality, and those that view law as a social artifact, conceptually divorced from morality, whatever their contingent similarities may be. (Green 2003: 44) Theories that affirm a necessary relationship between law and morality are called “natural law” theories, while theories that emphasize the social creation of law fall under the appellation “legal positivism.” On the received view, natural law and legal positivism are mutually exclusive and jointly exhaustive; the proper version of one, but only one, of those theories accurately describes the nature of law. (Kelsen 1945: 365) Natural law and legal positivism are often contrasted in the strongest of terms: either moral standards, or morality more generally, matters to the nature of law or it does not. There is no need to search for a middle ground, as the theories themselves do not allow for one. (Austin 1995 : 45)

Despite such rhetoric, even a cursory review of the historical roots of general theories of law demonstrates that the supposed battle lines between these two camps often blurred. For instance, commentators often identify Thomas Aquinas as both the seminal and paradigmatic figure in the natural law tradition, but no fair study of Aquinas's theory of law could ignore his emphasis on the importance of “positive law.” (Kramer 1999: 188)

Although even this cursory comparison of the origins of the natural law and legal positivist traditions demonstrates noteworthy agreement regarding the relationship between law and morality, the received view remains. Given the supposed opposition of natural law and legal positivism, one may be shocked to find many recent writings on the subject that range from the conciliatory to the irenic. (Hobbes 1971: 236) This holds especially true regarding the theory of one of natural law's most ardent defenders, John Finnis. For instance, H.L.A. Hart asserts, “Finnis's flexible interpretation of natural law is in many respects complementary to rather than a rival of positivist legal theory”. Joseph Raz points to Finnis's theory as “vindicating my claim that it is a mistake to think that the legal positivist and the natural law traditions are inherently incompatible”. Likewise, Finnis's work significantly contributes to Neil MacCormick's conclusion that “the issue of mutual opposition [between positivism and natural law] is now closed and unfruitful.”

If such noteworthy proponents of opposing sides in the supposed intellectual blood war between positivism and natural law admit the compatibility of the two ...