Theories of Law - Positivism and Naturalism

Introduction

The relationship between law and morals is an area that have had heated philosophical debates.  This debate has led many to subscribe to the ideas that law is ‘’what it is’’ as opposed to ‘’what it ought to be.’’ In this paper, positivism and naturalism which are the major school of thoughts in this area of law shall be considered in explaining the relationship between law and morals. Additionally, abortion as a common practice in the modern society will be considered in discussing the subject.

Discussion

While positivists hold that law can be separated from morality,[1] proponents of the natural law like St Thomas Aquinas maintain that law and morals are linked together.[2] According to the naturalists, the law is not just what is contained in legislations because if those legislations are immoral, there is no law. On the other hand, positivist like Jeremy Bentham maintains that law is man-made and is posited by the law-making bodies.[3]

The right to life is an entitlement to everyone. Therefore, some people consider those laws that permit actions that threatens this right as immoral. What triggers this kind of thinking is the believe that good law must meet a certain moral threshold.

Considering the practice of abortion for example, laws that prohibit abortion would be construed as moral by those who subscribe to the natural theory just because it tends to safeguard life after conception. This is with the knowledge that science has not successfully refuted that life begins at conception.[4]On the other hand, positivists would perceive any law as a good law so long as it has been legislated by the bodies mandated to come up with laws.

Whether law can be separated from morality depends on who is answering this question. To a naturalist, law and morals cannot be separated. On the contrary, positivist view laws and morals as two distinct things.  In some countries, abortion is generally prohibited but there exist instances it practice is justifiable in law. A good example is Kenya whereby the Constitution states that when the life of a mother is at risk abortion can be practiced to save the life of a mother.[5] It is noted that that part of the constitution caused a lot of panic to most Christians especially those from the catholic church since they felt that the constitution was promoting immoral laws.

Conclusion

To sum it up, regardless of the kind of arguments made by different theorist, it is clear that the binding force of the law does not depend how moral the law is. Thus, while this paper agrees that there are moral and immoral laws, it takes notice of the fact that law and morals must not be connected as we have moral and immoral laws that are equally enforced. A good example is the Nazi laws which led to the oppression of women and blacks.[6] These laws were morally wrong but they were still binding to its subjects.

Bibliography

Constitution of Kenya 2010

Burg W, The Dynamics Of Law And Morality

Sixthformlaw.info, 'Law And Morality - Legal Theory' http://sixthformlaw.info/01_modules/other_material/law_and_morality/01_legal_theory.htm accessed 1 March 2016

Humbach J, Whose Monet? (Wolters Kluwer Law & Business/Aspen Publishers 2007)

Fertig R, A Guide To Universal Truths (BookSurge 2007)

Joan C Callahan, Reproduction, Ethics, And The Law (Indiana University Press 1995).