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Legal Positivism and Natural Law


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 ... – PowerPoint PPT presentation

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Title: Legal Positivism and Natural Law

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
  • Positive-laid down by political rulers (legal

John Austin
  • The sovereign does not need to claim it is ruling
    justly or for the common good of the people
  • The sovereign doesnt have any moral obligations
  • That doesnt mean that the sovereign or the
    people are not subject to Gods 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

  • Positive law cannot be interpreted and applied
    without introducing morals and judgment
  • Morality will influence the way the rules are
  • Laws consist of explicitly adopted rules plus
    best moral principles that lie behind the rules
  • Proposed principles and the rules must 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
  • 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.
  • 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

  • Traditional Natural Law
  • Natural relationship between religion and
  • The Ultimate source is God
  • We have an innate ability to understand natural
  • We possess a natural sense of what is right and
    what is wrong


  • 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

  • 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

  • Aquinas
  • Eternal law is universal and applies to all
  • Natural law takes priority over positive law
  • Natural law imposes obligations on us

  • Primary Rules create obligations
  • Secondary Rules change primary rules
  • Having an obligation doesnt mean people are
    obliged to fulfill it

  • Inner morality of the law
  • Positive laws are created to further good
  • Morality requires obeying the law

  • 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

Legal Positivism
  • There is no link between positive law and
  • Positive LawMan made laws

Natural Law vs. Positive Law
  • Natural law is applies universally vs. positive
    law that applies to people within a given

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 philosophers view? How does law
    function as a system?
  • Analyze the philosophers 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 philosophers attempts to
    address inadequacies of earlier philosophies.
  • Criticize the philosophers 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
    philosophys 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