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The debate on natural law and positive law has taken different forms in different law and religious forums. There are those who believe that the debate centered on the distinction between morality and law. The connection between law and morality has largely been the main issue that the different types of debates have not been able to address. The meaning attributed by theorists of natural law and positive law is always geared toward supporting their point of argument. From its initial definition, natural law means that there is a force above that has the monopoly of conferring laws to human beings, which include inherent rights (Boyd, 2010).
Natural law is a God-given law that is supposed to be obeyed without any questioning. The early theorists of natural law were of the view that natural law is the command of God and it was to be obeyed even in instances when its obedience caused injustice. Natural law is largely unwritten and does not depend on enforcement mechanisms. Individuals get to understand the command under the law through nature and reason. Natural law has been a major source of debate in legal philosophy. The focus of natural law has been on unchangeable, absolute and universal morals. It is true to assert that natural law has been through a moral fabric, which seems insensitive to the changes in society (Soper, 2001).
From universal morals, there is the development of a mode of dealing with what is considered right or wrong. The moral prepositions are the main tenets of natural law. Positive law mainly means that there is a body entrusted with the powers to make laws for others. This essay will discuss the tenets of natural and positive law, providing in-depth elaboration on the advantages of each.
The moral authority in natural law is derived from religion. It is, in other instances, derived from human beings’ rationality. In medieval ages, the main source of any natural law was religious law and other moral related documentation. Throughout time, the meaning changed to a philosophical basis that has made extensive coverage to other modes of laws. The main attributes of natural law are based on the same form of understanding, which has an appeal to human beings’ reason, intellect, and experience.
The secular perception of the law has been the most recent development of natural law. Natural law has, in many instances, sought to integrate morality with law, thereby making them inseparable. Any legitimate legal system is made up of a morally grounded thread of moral values (Sullivan, 2007).
Moral tenets like justice define the current approach to natural law. In some instances, the words have been used to mean natural law. The law has been questioned on the basis that it is not easy to have a universal law based on morality. On the other hand, the positive law simply implies a law that is made by individuals as opposed to a law from nature, which is known as a reason or God. Positive law is a product of individuals. In democratic regimes, it is the legislature that takes the role of making laws.
The legislature is entrusted with the powers to make the laws that are supposed to govern the entire population. The nineteenth-century natural law was mainly tailored to the tenets of church law. Natural law changed entirely with the consistent questioning of morals and whether a law can be based on morals. It was argued that it was wrong to let a body of law governing individuals of different beliefs to be allowed to impose obedience (Rose, 2010).
Philosophers of the positive law have consistently observed that a law should be created by a legitimate authority composed of the people and which can be questioned. Natural law has been criticized for its lack of sanctions to command obedience. Lawyers in the area of natural law have failed to show the remedy in instances whereby individuals do not obey the law (Boyd, 2010). The positive law ideology is likable since it gives a room for a change of the law in different phases of the community’s life cycle.
Under positive law, the law is perceived as something worth changing due to the changing times. The change may also be engineered by the will of the people. If the people who are governed by a certain law want to change it, it is clear that it should be changed. Positive law plays different roles that are felt at varying levels in society. It creates harmony even in functions that would seem conflicting. It does not peg its validity on the norms as natural law does. Positive law is morally neutral and the law promulgating organ is guided by what the people want. A law that seems immoral from the outset may be accepted by the majority, thus becoming part of the binding law (Robertson, 2007).
Legal systems in the world today have sought to make laws, while at the same time observing positive law, as well as the tenets of natural law. The Bill of Rights in constitutions is a reflection of the natural law. The right to equality, for instance, is a provision that captures the moral element of natural law. The constitution has many elements derived from natural law since it does not change easily like other laws. The rules of natural law have largely remained unwritten. Positive laws have, in several instances, made it possible for functions of government to be realized (Boyd, 2010). Natural law has its merits since it is mainly used as the checking body of law.
For a law to be held to reflect the will of the people, it ought to have an element of natural law. In the modern setting of states whereby the process of lawmaking is inclusive, both natural and positive rules should be considered. Under positive law, the law will be flexible and reflect the will of the people. The nature of the law can be checked by checking whether the law has violations of the norms. The two types of laws agree on the point that laws are formed for a specific reason (Boyd, 2010).
There is an agreement that code is not necessarily the written law. Unwritten law has the same effect as written law provided it is agreed upon. Positive and natural law insist that moral concerns do not form part of the law. Natural law presupposes that the law should be obeyed even when it is wrong. Such a view is irreconcilable with the difference between what the law provides and what individuals do (Kindregan, 2004).
Philosophical theorists on positive law and natural law have appeared to differ vehemently. The main points of contention have been the foundation of the law. There are some who observe that law is supposed to command the subjects to obey. The natural theorists are of the opinion that law does not need to be written to offer the effect of obedience. The main disagreement has been in regard to who is supposed to make the laws. Natural lawyers observe that law is a command from God, which should be obeyed and not questioned. The essence of nature and reason has been illuminated by indicating how natural law exists freely.
Theorists of medieval ages have found it reasonable to obey laws without questioning them. The positive law theorists have opposed the contention that law can operate without the support of the people it seeks to govern. The unwritten nature of the natural rules has rendered the rules questionable. It is the understanding that law is the command of the majority that has persuaded positive law supporters to assert that there must be an authority to make the law.
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The existence of both laws in the constitution has been due to the fact that the Bill of Rights is mainly based on morals. The existence of positive law without natural law is not possible. It may not be possible for the parliament to ascertain the extent of the laws they are making. This is due to the fact that some of the unwritten laws are checked by unwritten natural laws. The arguments against natural law have been to the effect that individuals should be left to decide the type of law to govern them. People should take part in the process of making the law in order to know the law they are supposed to obey.
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Soper, P. (2001). In defence of classical natural law in legal theory: Why unjust law is no law at all. Canadian Journal of Law and Jurisprudence, 20(1), 201–223. Web.
Sullivan, B. (2007). Rape, prostitution and consent. The Australian and New Zealand Journal of Criminology, 40(2), 127–142. Web.