Legal Positivism and Natural Law
Unit 2
John Austin
 Laws are rules laid down by superiors to guide
those under them
 Rules are commands that affect specific acts or
general acts
 Divine-laid down by God for humans (moral
obligations)
 Positive-laid down by political rulers (legal
obligations)
John Austin
The sovereign does not need to claim it is
ruling justly or for the common good of the
people
The sovereign doesn’t have any moral
obligations
That doesn’t mean that the sovereign or
the people are not subject to God’s law
H.L.A. Hart
The law has to be understood in terms of
rules not commands
There are types of legal rules
Rules exist when people act in a certain
way and regard deviations from that way
as something to be criticized
Descriptive Social Rules
Persistent patter of social behavior
External aspect; describe patterns of
behavior
Normative Social Rules
A group uses rules as guidance and
justification of its own behavior. The rules
are used in praise of and criticism of
others
Internal-provides a norm by which
members of the group measure their own
actions
Primary Rules
Rules imposing obligations
Secondary Rules
Singles out the rules
Specifies how the rules can be changed
Specifies who can enforce and apply the
rules
H.L.A. Hart
A person has an obligation when a certain
kind of rule applies to him
Social pressure to confirm must exist
The rule must help maintain some aspect
of society that is regarded as important
and valuable
Dworkin
 Positive law cannot be interpreted and applied
without introducing morals and judgment
 Morality will influence the way the rules are
understood
 Laws consist of explicitly adopted rules plus best
moral principles that lie behind the rules
 Proposed principles and the rules must “fit”
“Fit”
 Logical consistency-the underlying principle
must be logically consistent with most of the
rules
 The underlying principle must help to justify or
provide rationale for the rules
 This theory means judges are allowed to rely on
their own moral judgments in deciding cases
Natural Law
Morality enters into the determination of
what the law is
In order to be law, norms must be in some
way morally acceptable
Lon Fuller
 “Inner morality of law”
 General systems of law abide by certain moral
principles
 Law is intended to regulate and control conduct
by means of general rules
 The rules are directed at humans who are
capable of deliberation and choice
Lon Fuller
The rules must be applied prospectively
vs. retrospectively
The rules must be relatively clear in
meaning
There is a prima facie obligation to obey
the rules of any genuine system of positive
law
Lon Fuller
This does not guarantee that every
genuine law is a just law
If a law is seriously unjust the prima facie
obligation van be extinguished
Aquinas
 Traditional Natural Law
 Natural relationship between religion and morality
 The Ultimate source is God
 We have an innate ability to understand natural law
 We possess a natural sense of what is right and what is
wrong
Aquinas
We seek what is good and naturally avoid
what is not good or that which is harmful
If a positive law conflicts with principles of
natural law these laws are invalid
Aquinas
 Human law-positive law
 Eternal law-principals of action and motion provided by
God to enable each thing to perform its proper function
 Natural law-Principles of Eternal law specific to human
beings
 Divine law-Law the exists over and above Natural law,
guiding us to the ultimate goal
Review
Aquinas
Eternal law is universal and applies to all
situations
Natural law takes priority over positive law
Natural law imposes obligations on us
Hart
Primary Rules create obligations
Secondary Rules change primary rules
Having an obligation doesn’t mean people
are obliged to fulfill it
Fuller
Inner morality of the law
Positive laws are created to further good
Morality requires obeying the law
Austin
Believes the laws are a series of
commands
These commands impose obligations on
man
There is no link the law and moral
obligation
Positive Law
Man made law
Imposes legal obligations on people vs.
moral obligations
Legal Positivism
There is no link between positive law and
morality
Positive Law
Man made laws
Natural Law vs. Positive Law
Natural law is applies universally vs.
positive law that applies to people within a
given territory
Writing Assignment
 Chapter 1 in the textbook describes the views of a number of philosophers
concerning the concept and nature of law. An important step in understanding
philosophies of law is determining, with respect to any particular philosophy, what law
is, how the philosophy conceives of law as a system, and how the philosophies
address the commonplaces of law concerning authority and the common good.
Choose five philosophers and in 1500 word paper:
 Summarize the views of the philosopher relating them to the concept and nature of
law. What is law, in this philosopher’s view? How does law function as a system?
 Analyze the philosopher’s views, discussing why they are logical or illogical,
consistent or inconsistent, persuasive or unpersuasive. Matters that might be relevant
to your analysis could include: the manner in which the philosopher addresses the
commonplaces of authority and common good or the philosopher’s attempts to
address inadequacies of earlier philosophies.
 Criticize the philosopher’s views, explaining why such views are logical or illogical,
consistent or inconsistent, and persuasive or unpersuasive. Illustrate your criticisms
with examples of situations or “clear cases” that demonstrate the philosophy’s
success or failure to satisfactorily account for the concept and nature of law.
Writing Assignment
 Supplement your discussion with material from at least
two sources other than the textbook.
 In addition to fulfilling the specifics of the assignment, a
successful paper must also meet the following criteria:
 Length of the paper should be at least 1500 words, excluding
cover page and references.
 Viewpoint and purpose should be clearly established and
sustained.
 Assignment should follow the conventions of Standard
American English (correct grammar, punctuation, etc.).
 Writing should be well ordered, logical and unified, as well as
original and insightful.
 Your work should display superior content, organization,
style, and mechanics.
 Appropriate citation style should be followed.
Writing Assignment
When you save your paper you must save
your name in the file name for
identification purposes.
Example: jclayunit2paper.doc