Natural Law and Positivism

The question has asked to compare the approaches of natural law and legal positivism in regard to the statement “law is quite distinct from, and its validity is in no way dependent upon, morals.” Both approaches agree that morality can and usually does play a role in the law, but there is a disagreement as to whether there is any role it must play, as discussed by Denise Meyerson. The first appearance of natural law was over 2500 years ago in ancient Greece, the natural approach of law believes that there is a higher law, such as the bible and god, which man made laws should conform to. J W Harris described natural law as universal and immutable, a higher law and it is discoverable by reason. Natural theorists believe that the law should be moral otherwise it is not law and does not have to be complied with, the Latin maxim “Lex inuesta non est lex” originates with St. Augustine and means an unjust law is not a law, this is the basis of natural law theorists. N E Simmons stated that the law is the “embodiment of a moral aspiration.” Legal Positivisms look at what the law is, where by a central authority creates the laws and if it is created by the correct procedure then the law exists, even if it is considered bad law.
Early legal positivists consider that the law is sovereign and does not need a relationship with morals so long as it has been carried through the correct procedure. Natural law approaches this issue by considering what the law ought to be and would take moral worth into account, thus if the law is not moral then it is not law. Positivists separate these issues by stating what the law ought to be is one thing and what the law actually is another, moral worth is only important when defining what the law ought to be to make it a good law, John Austin highlights this and stated “the existence of law is one thing; its merit or demerit is another.” Further David Hume believed that moral statements express out subjective attitudes of approval, where as factual statements describe the way the world objectively is. Legal positivism insists on the distinction between the law as it is and the law as it ought to be. This approach is now been referred to as the separation thesis which was put forward by Professor HLA Hart, who stated “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.” So what can be thought to be morally wrong can be legally right, for example some people still believe that homosexuality is morally wrong but the Civil Partnership Act recognized homosexuality as legally right. It would also be important to mention here that early natural law theorists believed that the law was unchangeable, but people’s moral values are subjective and can change over time, sometimes so does the law, homosexuality was once a crime as it was considered morally wrong by many people but now it is widely accepted and the law has changed, this goes on to Bentham’s Utilitarianism principle that the law should uphold the morality of the greatest number of people. This principle would then go against the natural law approach, if the law should be moral and they consider it not to be then it should not be followed, but not every single person has the same moral beliefs so could constantly break the law considering it not to be law going with the maxim “Lex inuesta non est lex,” this could cause much controversy.
In this discussion Nazi law should be looked at, Nazi law had evil characteristics such as the prosecution of Jews and homosexuals, many of whom were killed. This Law was clearly in no way deemed moral but does that then mean that it is not law? Or would it be considered good law as with the quote “law is quite distinct from, and its validity is in no way dependent upon, morals.” Professor H. L. A Hart and Lon L Fuller famously debated on whether the Nazi laws were in fact laws. Hart a positivist argued that they were laws as they had been considered valid by Nazi officials, the Nazis argued that the racial discrimination was relevant as it reflected the morality of their society and they therefore were allowed to be discriminating; positivists would then consider this valid law. Fuller a naturalist argued that they could not be considered laws, he looked at the way Nazi conveyed their legal system and questioned many aspects of it, questioning if there are secret laws which would be impossible to comply with, is that legal system then valid? Just because certain officials in a system say what the law is does that make it law? Fuller argued that laws should be clear, public, non-contradictory, reliable, proscriptive, possible to comply with and applied as articulated, he stated that the laws were so procedurally irregular that at least some Nazi dictates could not reasonably characterised as legal. He developed an approach that regards the law as having an inner morality meaning that the legal system has a specific purpose of “subjecting human conduct to the governance of rules,” accordingly there is a necessary connection between law and morals. Further, Fuller pointed out that the post war courts were entitled to hold Nazi rules not to be good law.
After the Nazi regime failed, the courts were faced with a number of “grudge” cases, which involved the prosecution of people who exploited the oppressive law of the Nazi’s in order to settle a grudge. Hart considered a particular case where “a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army,” he was then sentenced to death. She was prosecuted by the German courts but argued that she had merely taken steps to ensure the law was upheld so how could she have committed an offence? “The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband 's liberty by denouncing him to the German courts.” The court held that the statute "was contrary to the sound conscience and sense of justice of all decent human beings” and a number of cases followed this decision. A hart stated this appeared as though natural law was overthrowing positivism and that the woman was to be punished due to moral reasoning, another opinion could be that laws may be law but too evil to be obeyed as the Utilitarian’s would argue, another that retrospective laws were added to prosecute these people. There are many opinions on the issue of Nazi law, but the German courts prosecuted people who exploited the oppressive law because what they had done was considered unjust and immoral by the majority of people.
If the law in England and Wales is contemplated, it could be deemed to be practised in the way of the positivists view point; the government make legislation which lays down the rules and this is the law, this is to be followed otherwise it would result in some form of punishment. However, in some ways the common law system could be in the natural theorists view point a way of ensuring morals coincide with the law, the common law system in essence was developed to ensure just and equitable results. Chief Justice Coke stated in Dr Bonham’s case 1610, that “when an Act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void,” this shows that the common law will consider statue law to not be valid law in certain circumstances, such as where it is impossible to be performed which has moral worth. Further in the recent case of R V Home secretary a regulation provided that an asylum seekers income support benefit would terminate on the date that the home secretary’s reflection of the claim to asylum was recorded, the House of Lords found that entitlement continued until the notice of rejection as individuals have the right to know of a decision before their rights can be adversely affected. This decision could be seen as morally right as people should know of their own rights, again going with the natural theorists view point. There is no one theory which can establish what the rule of law is in England and Wales, there are aspects of both theories which can be clearly seen, as discussed above.
In this discussion it should be emphasised that morality is subjective, David Hume approached the idea of noncognitivism, where there is no rational procedure by which we can objectively know what is morally right or wrong, we cannot derive and “ought” from an “is”. Additionally if Morals are looked at as well as laws there are distinct differences; legal rules can be resolved by looking at statutes or judges reports but morals cannot be resolved, they are people’s personal beliefs. Legal rules can change public opinion, for example smoking in public places is now an offence but before this law was created it was perfectly acceptable, since the law has been in place it has changed the public’s attitude towards smoking in a public place, morals do not change public opinion. Legal rules can be created, abolished or changed; morals change gradually if at all. Legal rules have punishments if they are not conformed to, morals carry social pressures, people may look down at you but you will not be punished for an action deemed not to be moral. Finally moral rules must have mens rea, but the law contains legal principles where mens rea is not needed as in the case of Pharmaceutical Society of Great Britain v Storkwain, where the defendant was charged under S58(2) of the Medicines Act which states that no one shall supply certain drugs without a prescription.
The law is strongly influences by morals; it is not moral to take another’s life unless in war and so forth, this is also a criminal offence. But there are some inconsistencies by what is deemed moral and what is against the law for example it is an offence to cause another injury such as Actual Bodily harm, however boxing and wrestling can cause injury but this is legal as well as considered morally acceptable. Further, Sir James Stephen defined morality as the unanimous opinion of society, and the law should uphold it, but as morality is a subjective term it is not unanimous in most societies, so then should Bentham’s Utilitarianism principle take effect and what most people deem morally wrong should also be legally wrong?
The law should most defiantly take morals into consideration, and should form part of what it is. But the naturalist argument that it must always play a part in the law can be considered wrong, there are many differences between law and morals which as has been examined. When considering the Nuremburg trials, the Nazi law was deemed too immoral and people who followed those laws were prosecuted as earlier discussed, this should be seen as the Nazi laws being overturned and retrospective laws were added, not just the fact that the Nazi laws were so immoral that they could not be considered law. To conclude the statement the “law is quite distinct from, and its validity is in no way dependent upon, morals,” for the most extent is accurate. For a long lasting, fair and just legal system morals should play a part in the law but to not include morals in the law, even if they are only party considered then the laws validity should not be affected.
Word count: 1996

Bibliography
Books
1. Austin, 1954,The Province of Jurisprudence Determined 184-85 (Library of Ideas ed) 2. Denise Meyerson, 2007,Understanding jurisprudence, Taylor & Francis group 3. H.L.A. Hart, 1994,The Concept of Law, Second Edition (Oxford: Clarendon Press) 4. J W Harris, 1997, Legal Philosophies [2nd edition] 5. Raymond Wacks, 2006, Philosophy of Law: A very short introduction, OUP Oxford

Journals 6. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529 7. Lon L Fuller, (1957),Positivism and fidelity to law- A reply to professor Hart, 71 Harv,L.Rev 630,656 8. Leslie Green, 2008, Positivism and the inseparability of Law and Morals, New York University Law Review
Videos
9. LSE Research: The moral structure of legal systems, pt.1. http://www.youtube.com/watch?v=ge7UowL0d3U
Legislation
10. Homicide Act 1957 11. Medicines Act 1968 12. Offences against the Person Act 1861 13. The Civil Partnership Act 2004
Case law 14. Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 2 All ER 635 15. R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 A.C. 604

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[ 1 ]. Denise Meyerson, 2007, Understanding jurisprudence, Taylor & Francis group
[ 2 ]. J W Harris, 1997, Legal Philosophies, [2nd edition]
[ 3 ]. Denise Meyerson, 2007, Understanding jurisprudence, Taylor & Francis group
[ 4 ]. Austin, 1954 The Province of Jurisprudence Determined 184-85 (Library of Ideas ed)
[ 5 ]. H.L.A. Hart, 1994, The Concept of Law, Second Edition (Oxford: Clarendon Press)
[ 6 ]. The Civil Partnership Act 2004
[ 7 ]. LSE Research: The moral structure of legal systems, pt.1. http://www.youtube.com/watch?v=ge7UowL0d3U
[ 8 ]. Lon L Fuller, 1957, Positivism and fidelity to law- A reply to professor Hart, 71 Harv,L.Rev 630,656
[ 9 ]. Raymond Wacks, 2006, Philosophy of Law: A very short introduction, OUP Oxford
[ 10 ]. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529
[ 11 ]. Denise Meyerson, 2007, Understanding Jurisprudence , Taylor & Francis group
[ 12 ]. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529
[ 13 ]. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529
[ 14 ]. Denise Meyerson, 2007, Understanding Jurisprudence, Taylor & Francis group
[ 15 ]. R. (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 A.C. 604
[ 16 ]. Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 2 All ER 635
[ 17 ]. Medicines Act 1968
[ 18 ]. Homicide Act 1957
[ 19 ]. Offences against the Person Act 1861, section 47

Bibliography: 2. Denise Meyerson, 2007,Understanding jurisprudence, Taylor & Francis group 3 4. J W Harris, 1997, Legal Philosophies [2nd edition] 5 7. Lon L Fuller, (1957),Positivism and fidelity to law- A reply to professor Hart, 71 Harv,L.Rev 630,656 8 [ 2 ]. J W Harris, 1997, Legal Philosophies, [2nd edition] [ 3 ] [ 4 ]. Austin, 1954 The Province of Jurisprudence Determined 184-85 (Library of Ideas ed) [ 5 ] [ 8 ]. Lon L Fuller, 1957, Positivism and fidelity to law- A reply to professor Hart, 71 Harv,L.Rev 630,656 [ 9 ] [ 10 ]. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529 [ 11 ] [ 12 ]. H.L.A Hart, 1958, Positivism and the Separation of Law and Morals, Harvard Law Review, Vol. 71, pp.593-529 [ 13 ] [ 14 ]. Denise Meyerson, 2007, Understanding Jurisprudence, Taylor & Francis group [ 15 ]