Thesis statement: As the role of naturalism is limited to morality allowing people to escape it, positivism acts as a practical system restricting people from indulging in wrongful acts under the influence of punishment.
The question of obeying law depends on the choice between naturalism and positivism. The philosophy of jurisprudence represents two common models; one based on moral laws and the other one on legal laws. The choice between moral and legal laws illustrates the ideology of naturalism and positivism. To understand the concept of obeying laws it is vital to analyze both models. The society obeys under the light of moral laws or legal laws. The present paper assesses the role of naturalism and positivism in defining laws and how these laws govern society. It highlights the differences in two models and identifies the most suitable one. The comparison of the two types of laws helps in understanding the most realistic model that makes laws mandatory for the people and communities. The concept of law depends on the social and political life while jurisprudence emphasizes on the themes of justice, equality and fairness. The systems of naturalism and positivism are vital in studying the purpose of the legal systems. The jurisprudence answers the basic question of what is law and its purpose? The purpose of jurisprudence is to assess the theories of law and legal system. It also emphasizes the ideology of law, justice and legal system. The paper considers argument between natural law theory and legal positivism and determines the most effective system.
The analysis of general theoretical questions is also part of the jurisprudence. The concept of choosing between naturalism and positivism relies on the ideology of law, justice and legal system. The society that relies more on moral values will consider naturalism as an effective legal system for controlling the actions of people. The legal system presented by positivism represents laws that control wrongful actions and prevents them from illegal conducts. The law and legal system in the society emphasize on the concepts of justice and morality. The ideology of obeying laws involves selection between natural law theory and legal positivism. Natural law theory focuses on the moral standards and laws that prohibit humans from engaging in wrongful acts. The theory of naturalism ignores the legal impacts of the law.
Natural law theory concentrates on the aspects of morality, politics and theology. Theologists consider naturalism as a traditional and religious approach while positivism is a modern approach. The emphasis of positivism is on the practical and realistic impacts of the legal system. The paper discusses the agreement and disagreement between the two broader systems of naturalism and positivism. The application of the two systems on society leads to the question of choosing the most appropriate model. The selection between two systems involves a debate on understanding boundary lines and how they work in reality. The two schools through represent different theories on the conception of laws and how they control society.
The current paper provides an in-depth view of the theories of naturalism and positivism with the focus on uncovering the purpose of law and how it relates to justice. The analysis of the theoretical questions helps in understanding the concepts of obeying laws. The theories are central in determining how they maintain law and order by eliminating evil from society. The paper explores the association of morality and legal system with the duties of people. The purpose of the study is to analyze literature on naturalism and positivism that leads to the recognition of different aspects associated with law and order.
- Do people have a duty to obey laws?
- What causes people to obey the law?
- Is naturalism effective in restricting people from engaging in wrongful acts?
- Is positivism effective in eliminating wrongful conducts and evils from society?
- How naturalism and positivism define the concepts of rights and duties?
- Which system provides most powerful solutions in practical world?
- What influence the people more morality or legal laws?
- How both systems work to maintain law and order?
- Why are morality and laws important for the people?
- To uncover the factors that motivate people to follow laws.
- To determine why people obey laws and identify differences between naturalism and positivism.
- To understand the role of morality in restraining people from wrongful acts.
- To assess the role of two systems in defining rights and duties of individuals in society.
- To study the impact on both systems on maintenance of law and order.
- To study the importance of morality and laws in human life.
The understanding society without the conception of law and legal doctrine is not possible. It explains the laws necessary for the existence of society as without laws or legal system the survival of societies is impossible. Bix (2000) explains jurisprudence as, “the existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our approbation and disapprobation” (Bix, 2000). The jurisprudence involves the laws that are essential for the regulation of society and the people. Without laws, the chances of neglecting duties are more. The laws define the standards that motivate people to fulfil their duties and responsibilities. Laws set the limits that define the probated and allowed actions. Jurisprudence is also effective in maintaining the ideology of right and wrong. The concepts of equality and justice are also relevant to jurisprudence as it impacts the socio-political aspects. Without laws, people are more likely to act beyond limits that also confers the idea of disobedience.
Legal and political theories involve a description of facts also they postulate ideas about aspirations. Jurisprudence is significant for understanding the legal theory. It focuses on providing answers to the questions of laws, legal concepts and political ideologies. The descriptive legal theory also shows a connection with the jurisprudence as it highlights the concepts related to the political philosophy. Normative theory acts to establish strict liability that society ought to adopt for protecting the citizens. Choice of legal laws and enforcing them also involve complex components of the society. Jurisprudence emphasizes on the spurious legitimacy that endows the legal system and laws. D’Amato (2012) states, “one of the main jurisprudential ideas, though not amounting to a “school” in itself, is the insistence that law is something that is backed up by sanctions. Though the idea stems from Austin, it has been most consistently applied to international law by Hans Kelsen” (D’Amato, 2012).
It works to explain the validity of the laws and legal systems that act to set boundaries and defined rights and duties of individuals. It emphasizes on understanding laws and how they function in particular settings. The validity of the law depends on the sanctions that back it. D’Amato (20110 explains the law, “is nothing but a set of tools—admittedly complex and intellectually engaging. But we should not get so caught up in the intellectual interest of law that we forget that law in itself cannot solve human problems. Like any other tool, the law may facilitate the solution of a given problem” (D’Amato, 2011). The argument presented by D’Amato shows that law has the strong correlation with justice.
The reasons for the existence of law are to justice that also remains the prominent element of the legal and political philosophy. Another definition of the law states that it involves set of rules working to direct actions of people enforced by states through concepts of penalties and punishments. The application of laws is only possible under the influence of the state. The existence of state remains the central criteria for people to follow them. The non-existence of states results in the invalidity of laws as their application becomes impossible. Laws are effective in defining the rights and duties of the people living in society thus instructing them to follow certain standards and values. The common law fits within the notion of promulgated laws that works to maintain social order. Without social order, the survival of the societies is not possible (D’Amato, 2011).
The theory of law deals with the history of political obligations as to what factors encourage people to perform their duties. The debate of political obligation involves two arguments, its prevalence and non-existence. Political obligation is also a matter of why humans indulge them to certain actions and provide the reasoning behind restrictive roles. The problem of political obligation is that it involves debate regarding scepticism and providing a solution. The concept of political philosophy emerged in the seventeenth century when Thomas Hobbes and John Locke discussed the roles of state and the purpose of existence of law and order. They viewed the troublesome nature of political theory.
The purpose of political philosophy intriguing the philosophers was to uncover the true grounds for obedience to the law. Socrates identifies political obligation as agreement and commitment of an individual with the society that sets the boundaries for him and prevents him from hurting a friend or acting in the wrong manner. His argument also explains that humans are unable to escape their political obligation as it causes them to follow laws of society. The factors that influence humans to fulfil their commitments involve nature, birth, education and the good of others. Nature is the primary forces that bind them to the concepts of obedience. Socrates considered disobedience as an essential element that is capable of destroying the city. The concept of law explains what ought to be and what ought not to be. It restricts humans from engaging themselves in actions that are unjust. The political philosophy leads to the comparison of natural law system and the legal law system. Identifying the most practical and appropriate system involves debate. The discussion on political philosophy considers (Richard & Lefkowitz, 2012).
The supporters of naturalism view it as a law defining the activity of purpose. It works to resolve the disputes and protects legitimate rights of the people that function to maintain law and order in the society. Legal neutralists consider the system as the genuine law that eliminates the issues of injustice and inequality. The ideology of human obligation started with the theory of divine command that emphasized on the role of nature. The theory explains that people are obedient because nature sets limitations and laws that they are unable to avoid. God ordains individuals to stay on right path and restraints them from what is wrong. It is a natural force ‘morality’ that plays a vital role in defining human roles and duties in the society. The divine command theory explains that no fore is more powerful than nature that could eliminate the concepts of evil and sins (Richard & Lefkowitz, 2012).
The natural law theory relies on the elements of the universe, human nature and morality. The natural law theory emphasizes the moral obligations explaining that laws are good legislation for making people of good society citizens. Every individual has moral obligation to obey laws and perform their role as a good citizen. Fuller (1969) defines naturalism as, “legal naturalism is consistent with either the view that legal status depends on moral standards external to the law (the more familiar “natural law” version of the doctrine), or the view that the moral standards that define legal status are to be found within the nature of law itself” (Fuller, 1969). Natural theorists agree with moral realism as they consider nature’s law as the strongest force motivating people to fulfil moral obligations.
Moral realism according to the theorists is important for agreeing and disagreeing to which the tradition requires significant commitments. Naturalism also focuses on meta-ethical belief showing the close connection with morality. The schools of thought build relevance between law and morality. However, there are limitations to the natural law theory as it states that the claim is limited to the moral truth. It further suggests that the truth must evaluate the political and legal institutions (Wacks, 2005).
The theory of naturalism focuses on the natural duty that people acquire through birth. The conception of natural duty states that no entity works to set boundaries and keep people on the right path. It is only through nature that they learn to adopt moral values that restrict them from wrongful acts. Theory depicts, “natural duties are understood to be ones people have simply in virtue of their status as moral agents; they need do nothing to acquire them, nor does their bearing such duties depend on their occupying some role in a socially salient relationship.
Natural duties are also universal in scope; they are owed to all members of a class defined regarding possession of some feature, such as sentience or rationality” (Richard & Lefkowitz, 2012). The ideology of natural duty also shows relevance with the virtue as the reality of virtue and motivates them to stay on the right path. Virtue acts as moral agents that people acquire through birth or are taught by society due to the existing good to fulfil their duties and take roles that confine them to their responsibilities. The theory of justice requires people to fulfil their social and moral obligation. The ubiquity of the ethical problems justifies the role of natural laws as it is the central force allowing people to decide between right and wrong. Kant supports the concept of natural laws as they function to provide justice and equality.
Natural law theory emphasizes the concept of nature as nothing in the world is man-made. Similarly, the universe created laws that become most visible in the form of ethics and moral values. The moral values act as the strongest force that eliminates evil or injustice from the society. Natural law theory explains that the purpose of good is nature and the concept of happiness is also linked to nature. Nature develops the moral values and ability in individuals to avoid engaging in negative actions. Natural law involves set of truths that society holds for attaining justice. It further states that “immoral behavior is “unnatural” (in the sense of “contrary to our function,” not “nowhere to be found in the natural world”), whereas virtuous behavior is natural” (Richard & Lefkowitz, 2012). Considering immoral behavior as unnatural puts the responsibility for wrongful action entirely on the human. However, the absence of the legal system for controlling the acts eliminates the conception of penalties (Wacks, 2005).
The natural laws rely on the divine theory as it explains that God explained through scriptures about the morality and conception of right and wrong. Natural laws are capable of motivating individuals to identify right and wrong. Nature allows individuals to act morally as it eliminates the immoral behaviors and unethical conducts. Naturalism promotes the ideology of God’s existence and his emphasis on maintaining justice. Philosophers associate divine laws with natural laws as it confirms the prevalence of traditional theism. Human laws are genuine laws when they do not act against the divine laws or nature. Plato relates the natural laws with absolute values that define the responsibilities of people and confines them to fulfil their duties. Aquinas supported the natural law and identified it as a source of divine providence. The concept of naturalism considers the absolute values as powerful enough to control human beings. The notion neglects the need for man-made laws or society’s constructs. Aquinas further associate the concept of naturalism with natural guidance. God’s guidance and scripture are sufficient for setting boundaries for human beings (Bix, 2000).
Legal positivism provides an idea that is different from naturalism and morality. The legal positivism focuses on the merits and demerits of laws. Law exists irrespective if the fact if we like or dislike. Laws work in same fashion for every individual of the society. Human positive laws remained the subjective consideration for the political theorist Thomas Aquinas. Positive laws are also crucial in attaining common good that needs deployment of state of power. Legal positivism represents opposing views to naturalism as the focus is of objectivism is on objective moral truths. It argues that naturalism lacks subjectivity thus it fails to work in realistic settings. Legal positivism stresses on determining if the rule is law or not. Creation of legal obligations depends on valid laws that are capable of restricting individuals from engaging in wrongful conducts. Having a legal right to do a certain thing entails having a moral right. Laws of society defines the legal rights and their impacts on the members of society. While in case of moral rights one needs to distinguish between right and wrong.
Jeremy Bentham and John Austin are prominent supporters of legal positivism. Positivism states, “it is nothing but a prediction that if a man does or omits certain things, he will be made to suffer in this or that way by judgment of the court” (Richard & Lefkowitz, 2012). The role of penal laws and judgment of court becomes more effective in controlling wrongful acts of the people. The courts and they exist in society makes it difficult for the people to escape legal laws. Punishments and penalties are the primary motivators restricting them from illegal conducts. The claim that positivism differentiates between legal and illegal acts leads to the social order.
Comparison between naturalism and positivism
The central argument of the paper claims that positivism is effective approach to maintain social order as naturalism depicts few ontological commitments. Regarding realistic law, theory positivism provides the more strong solution to control unjust behaviors of the people. The argument states that the role of naturalism is limited, as it does not engage in immediate punishments or evaluations. The application of naturalism in realistic settings is less significant as people are unable to make moral decisions when they don’t fear immediate outcomes. The concept of immediate outcomes depicts the element of punishment that eliminates the possibility of negative actions or human behaviors. The natural law explains differences between right and wrong while positivism creates distinctions between legal and illegal. Legal positivism confers the claims that naturalism is false because morality cannot restrict them from engaging in wrongful actions.
Positivism claims that naturalism is untrue as it considers the immoral behavior as unnatural. The fact that naturalism is limited to moral behavior exhibits shortcomings of the theory. Compared to naturalism, positivism focuses on common good that prevails in the society. It denies the ideology of moral obligation and replaces it with the legal obligation. Aquinas, Augustine and King Martin Luther supported positive legal approach. Lon Fuller states there exist the overlap between legality and justice. Political superiors take the active role in commanding laws and imposing them on inferiors. The concept of sovereigns exhibits relevance with positivism, as they are the people who create laws and impose them on society. The laws control the inferior people of the society who have the responsibility of obeying them. Positive laws act as general commands that apply to the followers and not the lawmakers. The concept of positivism is more realistic as it explains the reasons behind the social order. Sovereigns take the authoritative role as they have the power of controlling the society and maintaining justice. It supports the notion that sovereigns are above the law. The authoritative personnel plays the vital role in maintaining order as they confine role of people according to their rights and duties.
Though both naturalism and positivism emphasize on finding the answers of what and what ought not to be but positivism presents the valid justification of legal laws.
The factor of penalties associated with the law makes positivism more valid in real settings. The role of naturalism is limited in real life as it lacks immediate response. God made laws controls the actions of those individuals who accept religion and nature as the central force behind the creation of the universe. People devoid of religious or moral values are unable to act rightly. The theory explains, “If acts of the class were done, or forborne or omitted, what would be the probable effect on the general happiness or good?” When the effects would be “pernicious, we must conclude that [God] enjoins or forbids them, and by a rule which probably is inflexible” (Austin, 1832). It further explains that the single entity responsible for judging the acts of humans is nature and God. This eliminates the fear, as people know that they will not encounter immediate punishments. The notion of delayed punishments and rewards restricts the people with weak moral values to fulfil obligations. On the contrary, the law binds superior and inferior in the positive laws. The penal laws impose the duties on the followers that acts as the central element for the maintenance of law and order in the society (Wacks, 2005).
Moore argues that natural laws are ineffective in controlling the society as they are procedural and weak in providing substantive justice to the people. Also complying the natural laws leads to further confusion, making them less significant in real settings. He further explains that moral facts are part of legal constructs and without the legal system, their application poses challenges. The theorists argue that natural laws involve fallacies resulting in their incompetencies for dealing with the social issues of equality and justice. John Finnis and Robert George deny the effectiveness of the natural laws as they emphasize on possible ends of actions. Moore presented the naturalistic fallacy, uncovering the limitations of the theory. He demonstrates the error of defining goodness according to natural property and under the influence of happiness and pleasure. Naturalistic fallacy highlights the absence of the logic rule in defining the factors that maintain social order. Weakness is apparent in theory as, “the fact that natural law theory might be vulnerable to the naturalistic fallacy insofar as it claims to derive ethical norms from a purely theoretical or descriptive account of human nature” (Grant, 2004). According to the philosophers regarding practicality natural law lacks reality. When one reflects on possible ends, the notion of naturalism becomes less significant. Basic goods are self-evident that focuses on the role of ethics. It is difficult to justify the effectiveness of natural laws, also that it does not leads to valid conclusions (Trapani, 2004).
The argument against the naturalism explains on the conventional criticism against justice and injustice. It involved the explanation of choice between right and wrong under the influence of the social complexes. The reality of natural laws relies on the role of conscious and subconscious. Plato mentions, “for although people who respect traditional norms and standards of evaluating human conduct may well regard these not merely as a social fact but as having directive force for them, and thus a kind of moral truth, nonetheless this attitude of theirs is often-indeed, characteristically-marked by its uncritical marginalizing of the question of truth” (Finnis, 2012). The argument explains that the social existence is impossible without the controlling authority. The significant weakness of natural laws include the unidentified authority as the concept of goodness and morality relies on nature. Natural laws also exhibit freedom of choosing between right and wrong that makes the notion of ethical conduct least important. The social contracts may be ineffective in restricting people from harming others. The choice under naturalism relies on the individual’s thought. Platonic critique uncovers the error in moral reasonableness. To gain benefit an individual is more likely to harm others when the legal system is non-existent. Deriving personal gains becomes easier under naturalism as without concept of penalties people will use the opportunity in their best interest (Trapani, 2004).
The positive legal theory provides supporting the claim by using the concept of punishment. Positivist school of through considers punishment as an important tool for eliminating injustices and unfairness from the society. The theory is vital in setting legal limitations and restricting people from indulging in illegal acts. Through punishments, the state manages to remove vengeance and crimes. The idea that penalties create inner fear among citizens will restrain them from harming others. To avoid punishments, they make a rational choice. The rational choice in case of naturalism becomes less important as it would encourage human beings towards personal gains thus promoting injustice.
Positivism, on the other hand, eliminates the conception of personal gain due to the legal system and regulations that monitor the actions of people (Richard & Lefkowitz, 2012). Another claim that supports the effectiveness of positivism involve the notion of peace. The approach is useful in attaining peace and welfare in the society. Jeremy Bentham is a famous philosopher who defends positivism, “men are possessed of free will. They are calculating animals and based their action on pleasure and pain. Men will be discouraged from criminal activity if threatened with punishments that outweigh any gain resulting from their actions. The individual is responsible for his actions and punishment must be proportional to the interest violated by the crime” (Faqir, 2015). Bentham stresses on the need for creating the legal system as the concept of justice is vague without it. People have free will that influences their decision of choosing between right and wrong.
They can neglect righteous when they fail to see the outcomes. The legal system sets the outcomes that limit people’s engagement in wrongful acts. Bentham further claims that people are more likely to violate law and order when the controlling authority is missing. The claims presented in the theory of Bentham justify the reasons for punishment and its impacts on promoting justice. The theory also suggests that human activities have relevance with human choices and they choose to become rational actors. They calculate pleasure and satisfaction to before choosing any course of action. The emotions of fear will act as a strong indicator influencing actions of people. He relates the principle of gradation of punishment with positivism making the laws more real for the people. The rational choice depends on the comparison between penalty and advantage. Bentham argues that when the penalty increases the advantage minimizes for the individual that will restrict him from harming others. The conception is also important as it allows people to value greater good.
He explains that punishments are influential as it allows people to attain reformative interests. The state’s engagement in punishment and rewarding have the significant impact on controlling the actions. Punishments such as fines and imprisonment impose high costs on the people that motivate them to follow laws and rules (Wacks, 2005). Bentham also illustrates that the rational choice of people relies on the notions of maximizing happiness and minimization of pain. The increase in the intensity of pain results in the disadvantage of the wrongdoer. The assessment of the outcomes and ends depends on the duration, punishment and costs (Grant, 2004).
Paul Fuerebach identifies the strengths of positivism and its practical role in the world. To uncover the importance of positivism he states, “forbidden almost everywhere, countries in the codification tradition are, generally speaking, much stricter on this subject that are common law countries” (Faqir, 2015). The notions further elaborated by neoclassical theorists also focuses on the negative role of free will. Free will does not explain individual differences that result in the ineffectiveness of naturalism. Neo-classical schools used rational choice approach to capture the impacts of two models; naturalism and positivism on society and people (Faqir, 2015).
The positive school emphasize the punishments and the prevalence of the legal system as it contributes to law and order. The concept of positivism is also vital, “though the human law is artefact and artifice, and not a conclusion from moral premises, both its posting and the recognition of its positivity (by judges, professionals, citizens, and thence by descriptive and critical scholars)” (Bix, 2000). The prevalence of legal system distributes power to the few people who set laws for the people. The authoritative personnel are capable of maintaining justice by controlling actions. The citizens according to positivism are more inclined to stick to their roles defined by the legal system. After considerable thinking and scepticism, they make choices for choosing conducts. Bix (2000) states that the objectivity of naturalism does reflect its weakness as it fails to work in realistic settings. Positive legal laws, on the other hand, are effective in identifying possible conducts.
Naturalism provides leniency to the people, and according to the rational choice, they seek pleasure in hurting others. The common examples state that causing harm to others such as theft or robbery allow individuals to become well-off. Rational choice in naturalism will provoke them to exhibits the wrongful attitude and gain the advantage. Theories argue that the absence of central authority encourage the people to choose the option that leads to maximization of welfare. Positivism, on the contrary, works oppositely as it permits individuals to assess outcome. The concept of benefits stresses on escaping punishments and penalties (Grant, 2004). The theory of positivism also explains that the reasons for people to obey laws are to attain benefit. The recognition that avoidance of law makes them worse-off makes the naturalism approach ineffective and unrealistic. Reasons for obeying laws are unclear in naturalism as the only force stopping people from engaging in wrongful acts is morality. The moral philosophy is not sufficient to justify obeying the law. Positivism, on the other hand, plays a crucial role in eliminating misconduct and evil from society (Wacks, 2005).
Naturalism exhibits limitations due to the inherent weaknesses thus proposing positivism as a powerful model for promoting justice and fairness. When society discusses the political philosophy, the factors controlling the actions of people have a dominant role. The comparison of the legal systems depicts that positivism provides a practical solution to influence the behaviors of people. The concept of punishments and penalty makes a positive theory more vital compared to naturalism. Nature laws provide the free will to the people while the central authority responsible for imposing laws is also missing. Naturalism states that moral laws are defined by God that people explore through scriptures. Objectivity of naturalism does its weakness as it fails to work in realistic settings. Positive legal laws, on the other hand, are effective in identifying possible conducts. The compassion between the two school of thought exhibits the strengths of positivism overpowers naturalism. Theory of rational choice explains the behavior of humans and the reasons behind making a choice. The rational choice of people relies on the notions of maximizing happiness and minimization of pain. The central claim states that without penalties it is not possible to control the behaviors or eliminate possibilities of wrongful conducts. The fear of punishment and penalties result in the disadvantage of the people that encourage them to avoid harming others. Positivism is also significant in controlling emotions of the people.
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