Himethma Perera
“When Justice Wears Two Faces: A study between two Legal schools of thought”
By Himethma Perera
Introduction
From the ancient period of Greece people were very curious about what law really is. So, time to time they have given and created various ideologies, definitions as well as theories on law. In here we are looking forward whether every legal school pf thought illuminate the concept of morality by comparing the natural al school of thought with another legal school of thought. In the below article you can have a brief idea about what natural law school of thought is, who were the philosophers of it, main ideology of it and its relationship with peoples’ social and political life through some day today matters. On the other hand, you can have a brief idea on what positive law school of thought is, who were the philosophers of it, main ideology of it and its relationship with peoples’ social and political life through some day today matters. And at the end you will be able to know whether every legal school of thought illuminate the concept of morality or not.
Natural Law School of Thought
Natural law school of thought is the oldest legal school of thought in the world. It originated from ancient Greece and Rome. The scholars who created and followed this theory talk about what law ought to be or should be. we can divide the evolution of Natural Law under a few grounds such as,
- Ancient Period
- Medieval Period
- Period of Renaissance
- Modern Period
Ancient Period
As already mentioned, above we can define this as the oldest legal theory in the world and during the time of the ancient Greece, which is 4th or 5th centuries, some scholars were curious about what law really is. Hence, they came up with the idea of law is all about ethics and philosophy. And also, they mentioned that this theory connects with philosophy as well as economy.
We can find out several scholars who practiced Natural Law in ancient period. Heraclitus is one of them and in his point of view nature is not just a gear or a material. It is something which associates reason to everything. According to him reason to something is the most important thing in the natural law theory. Socrates is another philosopher who lived in this era. He believed that law is always interconnected with nature. He thought that law should be a ground to morality, reality and truth. As one of the very first scholars in ancient Greece, Plato is known as the father of the Western Philosophy. He also practiced Natural Law and he defined law as “DIKAISAYNE”. After all Aristotle is known as one of the best philosophers in ancient Greece. And also, the key point is not only that he also followed the Natural Law Theory but also gave and showed his opinions as well as definition on this legal theory. In his point of view natural law or universal law is something from nature which is applicable to every human being in the world.
Medieval Period
The time period between the 12th century and 14th century is known as the “Medieval Period” in Europe. In that time catholic church was the most powerful authority in the society. Christian fathers did rule the state, and they needed to create a new ideology which shows off and acting as a ground for Christianity. So, they realize that best way to do it is creating a new political ideology which includes morality and theology.
During that period, they had two main principles according to their theory. First idea is that unity comes from God, meaning there should be one faith, one church, and one empire. Second idea is that supremacy of law was seen as not just created by humans, but as part of the natural order and harmony of the universe.
Just like the ancient period this period also has some scholars who followed the natural law. Saint Thomas Aquinas take huge space when we talk about them. His opinion on natural law is very familiar with Aristotle’s opinion. According to him law is “an ordinance”.
The Period of Renaissance
The time period of the 16th century is known as the Period of Renaissance. In this period a huge change happened. People realize that law is not something related to God or any spiritual thing. It is an intellectual authority.
We can find several scholars who practiced natural law in this era. Hugo Grotius, Pufendorf and Vattel are some of them and in Grotius’s point of view natura law is something permeant and even god cannot change it by himself. Also, according to him law is a wage concept.
Modern Period
In later periods such as 18th and 19th centuries, there were some famous personalities and philosophers who made sound about morality. Mahatma Gandhi, Martin Luther King Jr., Lon Fuller and Joh Finnis are a few of them.
Since we talked a lot about the evolution as well as the history of natural law theory, let us see how the natural law school of thought view law in our social and political life, as well as the relationship between law and morality through some issues like governing abortion, homosexuality, sentence to death etc.
If we take governing abortion first, when we talk about this topic pairing with morality, we can find that there are two main problems popping up which are pro-life and pro-choice. Regarding to the main ideology of the natural law theory we can’t choose one topic over the other. Because every human life is worthy and no one has the right to violate it. According to morality, abortion is an immoral act.
Now let us talk about the relationship between morality and homosexuality. From ancient time to today most of the naturalists, especially Plato, Aristotle and Aquinas have mentioned
that homosexuality is an immoral thing. And also, in present most of the modern naturalists also argue against homosexuality.
Strengths of natural law theory
We can find several strengths of natural law school thought if we take a look. First one is it is very straight forward as well as crystal clear. As an example, abortion is a crime according to morality. Then the second one is it is developed on people’s capacity to reason and doesn’t care about unstable consequences and attitudes also it always develops a bond between the originator, the origination and the reason. Last but not least it is easy and not complicated to follow.
Weaknesses of natural law theory
As a coin everything has two sides. So just like that, this schools of thought have strengths as well as weaknesses. Let us see what they are. Firstly, it does not have the ability to understand where people find themselves in and outcomes of an action. Second one is some people do not like to use morality as a ground for justice as well as not all relational persons like to admit within the decision. Also, an atheist would never prefer to follow a legal theory which was created by a God’s choices. The last one is the decisions of this theory are different from one person to another person.
Legal Positivism
Legal positivism is a theory which shows off the natural way of law, which is created by socially. According to legal positivism, law is similar to rules which were made by the legislator or common law or case law. Like natural law theory, morality, reason or human rights are not the grounds for legal positivism. Simply it is completely opposite side of the natural law theory.
In legal positivism, positivists do not make any judgments according to questions of justice humanity. They do not care about the ethical or philosophical justification of law. The way of making new laws in this period was a bit different. The judges created new laws by practicing, deciding, or tolerating certain cases which they cannot put clearly under a current legal rule.
The positivists first used the word “POSITIVISM” to show off that main idea of law is “positive” or “posited” as well as completely opposite of the idea “natural”.
Main influential thinkers of Positivism
Just like the natural law theory there were some scholars in legal positivism too. The first one who dropped out the idea of positivity of law is Thomas Hobbes. Supremacy on sovereign power was the ground for his legal philosophy. Hobbes is one of the main thinker who deliver the idea of an unquestionable and absolute authority with supreme sovereignty.
Jerome Bentham is another British positivist who did a great work to legal positivism. In his point of view, he divided people into two categories by looking at the way they care about law. First one is Expositors- Citizens who only read and explain the law and not going to give any moral or ethical ideas on it. Second one is Censors-Citizens who do not like to divide the idea of morality and the people who criticize the law because of the ideas of sociology and history. According to him, law is not something to discuss, criticize or debate. It is something to explain and obey.
John Austin is one of the thinker in this school of thought. According to his opinion, law is the Command to sovereignty. His purpose was to define law as a positive science. He wanted to separate law from ideologies like ethics, philosophy, social responsibilities and most importantly morality.
After reading above information, we can say that these thinkers did a great job to the theory of legal positivism as well as making law as an objective not a subjective science.
Theses related to legal positivism
There are several thesis related to positivism. First one is pedigree thesis. This was enforced by the Command theory of Austin. He says that “The principle distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by the most people in society”. In other words, citizens should obey the rules and principles which have been posited. Citizens who disobey to them will be punished by the sovereign, which is justified.
Second one is separability thesis. This is about the establishment of legal positivism. Also, it has some similarities with the previous thesis. Separability thesis says that law has no ability to divide from the ideology of morality since it directly impacts the development of the social political paradigm.
Third one is desertion thesis. If we explain this in a simple manner it means that if there is a difficult case to offer a judgement, judges create or make new laws to them.
Since we talked a lot about the evolution as well as the history of legal positivism theory, let us see how positivism view law in our social and political life, as well as the relationship between law and morality through some issues like governing abortion, homosexuality, sentence to death etc.
First, I’ll go with abortion. According to positivists’ opinion on abortion, it should follow scientific facts like how baby grows and the effects for pregnant woman’s life. Also, positivists allow individuals to make their own decisions sometimes to protect their bodies. That fits with their idea of logical thinking.
Under positivism actions for a topic like homosexuality should be taken under specific statutes and regulations which were taken under legislature. So, if a legal system recognizes and protects same sex relationships through legislation, it is also valid under positivism.
Strengths of legal positivism
We can find several strengths in legal positivism too. First one is certainty which means the theory is able to give certain outputs or judgements in legal decision making. Second one is clarity. That means legal positivism always gives a pure idea about what law really is. Third one is neutrality, which means that positivism always gives a faire look towards all social, economic as well as political factors which are related to law in a state. Last fact is progressive changes. That means this theory is one of the best ways to promote changes in law, since it pulls the lawmakers like legislation to create new laws.
Weaknesses of legal positivism
When we come to the weaknesses of positivism, we can find out several factors. First one is moral deficiency, which means the theory’s biggest weakness is that it makes a huge moral vacuum in the law. Second one is inflexibility. That means legal positivism is not a concept like morality. It is very strict and not flexible. Lack of accountability is another fact. And the last fact is overreliance of lawmakers.
Conclusion
After reading, referring and researching on the topics which were given above, it is crystal clear that only the natural law school of thought stands and illuminates the concept of morality besides other legal theories are completely different from the concept of morality.
