From a natural law perspective, law is rooted in nature; it is universal, and able to transcend time;
and it is capable of discovery by reason. Cicero believed in a divine ‘right reason’ threaded into
nature, which gives humanity common principles which unite us, and form the foundations of law.
According to Aquinas, humans can participate in the Law of God as rational beings, having been so
created by God. Reason or rationality and morality must be linked – we were created as both
rational and moral beings. Law and morality are intertwined and inseparable – law comes from the
very morality that innately lies within man. Michael Moore championed secular moral realism and
theorised that morality need not come from God, but there are at least some objective truths in the
world.
Natural law imposes obligations to act morally and reasonably. Through the ‘social contract’ there is
an obligation to act in the best interests of the community by applying the ‘general will’. Hobbes
believed it necessary for man to cede ‘the right to everything’ to achieve the peace required for
security and development. Locke saw the ceding of some rights as affording man the benefit and
protection of his property. Rousseau viewed the social contract as an agreement between the
individual and the community giving rise to the ‘general will’.
Natural law follows a ‘thick’ theory of the Rule of Law, focussing on what the moral content of the
law is, whether is achieves justice, and if it is compatible with the values of the society it applies to.
In the maxim lex insiusta non est lex, revived by Aquinas, an unjust law is not law. Radbruch posited
that law which is intolerably incompatible with justice should be disregarded by a judge who should
instead find in favour of the principle of justice.
The constitution of Ubuntuland is compatible with the principles of Natural Law. It favours the
protection of the natural environment, as far as is reasonable, which could be seen universally as
good. It also balances this with the need to further the security and development of the people of
Ubuntuland – a principle derived from the social contract that is also consistent with natural law. In
wanting to build a hydroelectric power station, one needs to weigh the damage caused by flooding a
protected piece of natural environment with the good that the station could bring to the
community.
You will need to take the approach of Finnis and view, in your mind’s eye, what the pattern of
human character is among the people of Ubuntuland to gauge how supportive they would be of
your plan. If you find their support is strong, you would not be at odds with natural law theory to
request the passing of legislation that allows you to proceed with your plans. You will also need to
ensure that the damage your plan causes to the National Park is not so severe that it becomes an
unjust trade off misaligned with the Rule of Law.
From a legal positivist perspective, law comprises rules or norms made by the legislator. Bentham
saw law as “the command of a sovereign backed by a sanction”. Later, Hart takes a softer approach,
appreciating law is also a social phenomenon due to the ‘human condition’ and can include rules
between people that protect property and ensure promises are kept. Kelson views law as a scheme
of interpretation and devised the concept of a ‘Grundnorm’ or basic norm, that forms the underlying
basis of a legal system.
The pedigree thesis in legal positivism formulates the conditions for legal validity in terms of who
makes the law and the framework they use to proclaim it. Legal positivists differentiate between law
that is properly created and improper law. Hart postulated the rule of recognition to determine what
constituted proper law. These could be instruments that specify what the primary rules are, and the
criteria that make them legally valid e.g., an Act not repealed, or a ruling in the highest court;
instruments like the Constitution that specify what the most important rules of the legal system are;
and social rules that are consistent with the main rules. Through the discretion thesis, legal
positivists also recognise that judges decide hard cases by making new law.
Bentham used positivism to develop a clear framework for law enabling visibility of what was being
posited by whom. He aimed to give law utility using the scientific method. Through the separability
thesis, legal positivists prefer that it is the structures of governance that give law validity rather than
whether the content is moral and just. Legal positivism follows a ‘thin’ theory of the Rule of Law
focused on procedure. The key concern is whether the law has been properly constructed and
clearly stated, and that the procedures set out have been followed.
The Constitution of Ubuntuland is proper law because it meets the rule of recognition – it has not
been repealed. While the Constitution recognises the principle of ecological integrity, as far as is
reasonable, it also recognises the need to further the security and development of the people of
Ubuntuland. While both principles have been given validity through the Constitution, a qualifier – ‘as
far as is reasonable’ has been added to the principle of ecological integrity. There would be merit in
arguing that the security and development of the people of Ubuntuland is the paramount
constitutional concern, and the principle of ecological integrity need only be adhered to when it is
practicable to do so. The discretion thesis (that judges decide hard cases by making new law) may
come into play.
When proposing legislation to enable the construction of the power station, the positivist approach
is to ensure it follows the correct procedures of enactment to be valid. You will need to follow the
pedigree thesis. The wording of the enabling legislation also needs careful construction to be
consistent with the Constitution, otherwise it may fall short of meeting the rule of recognition.
I personally consider the legal positivist perspective to be the more compelling because there is a
due process that needs to be followed to create law and for law to be valid. If that process has
integrity, so too will the laws that come from it. The advantage of positivist law is that it creates
certainty. We know what the law is because we can read it, and we can reasonably foresee the legal
outcome of a situation because all manner of law is well documented.
Natural law is more likely to create legal uncertainty - it can be vague and lacks the clarity of the
positivist approach. Legal positivism doesn’t completely disregard morality in law, but it separates
morality from law – rather law can be moral, but it need not be. It prevents law makers from
inserting their own subjective interpretation of morality into the law.
In this situation, neither approach would give certainty that the power station could be built but the
legal positivist approach would ensure that, if approved, it was legally valid.