Natural Law Vs Positivism Essay

Natural Law Vs Positivism Essay-52
The distinction between natural law and conventional law is grounded in Greek philosophical thought, which distinguished nature (physis) from custom (nomos).Natural law, which was often associated with divine law, encompassed such things as the natural movement of the elements (earth descending and air rising) and the movements of the stars, and was part of nature; natural laws could not be changed by humans.157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.

The distinction between natural law and conventional law is grounded in Greek philosophical thought, which distinguished nature (physis) from custom (nomos).Natural law, which was often associated with divine law, encompassed such things as the natural movement of the elements (earth descending and air rising) and the movements of the stars, and was part of nature; natural laws could not be changed by humans.157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.

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Customs and conventional laws were created by humans, and included such...

Customs and conventional laws were created by humans, and included such things as social customs and criminal laws and could be changed by humans.

The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H. Legal positivism's importance, however, is not confined to the philosophy of law.

It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars.

Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact.

Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it.For example, an overwhelming number of cultures have taboos against incest.Modern evolutionary biologists argue that these taboos are rooted in the natural laws of genetics, because incest or inbreeding is likely to increase the frequency of deleterious recessive genes.On the other hand, most people think that laws and conventions determining gender roles, such as the prohibition against females driving in Saudi Arabia, are purely conventional, as not only are they not universal but not grounded in the actual statistical evidence that female drivers are actually far safer than male drivers, getting in fewer accidents and getting fewer tickets.Natural law and positive law differ in a number of ways.By the mid-twentieth century, however, this account had lost its influence among working legal philosophers.Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts.The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.The Greeks, and many subsequent thinkers, made the point that if conventional laws were grounded in natural law then rather than being mutable and arbitrary, they would be fair and just.One sign of a law being "natural" is that it is universal rather than limited to one specific culture.

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