Introduction
In reviewing the differences (and similarities) between Legal Positivism and Natural Law, I’m drawn to a statement made by authors Deryck Beyleveld & Roger Brownsword in reference to the dispute between the two theories. “As standardly interpreted, the dispute between Positivism and Natural Law Theory is about whether or not there is a necessary connection between law and morality within the concept of law itself.”[1]
This paper presents each theory individually, addressing distinct ideas from supporting theorists. I will then proceed to address their consistency with biblical perspective. I will end with two legal issues that this country has recently faced where each issue was an example of one or the other theories.
What is Legal Positivism?
Legal positivism “arose in the 18th century with the writings of Jeremy Bentham and John Austin. They based legal positivism on the application of empiricism to the law and on rejecting Biblical natural law.”[2] Sir William Blackstone taught the natural law theory, and John Austin disagreed with Blackstone. In response to natural law references in Blackstone’s teachings, Austin wrote a definition of legal positivism that is possibly the most frequently quoted summary. He said:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.[3]
Austin summarized Blackstone’s position as being unworkable. “The legal positive [Austin] advocated was that any law was legal unless it violated an explicit provision of a constitution or superior statutory authority, in other words, human government.”[4](emphasis mine).
H. L. A. Hart’s approach to positivism varied a little from Austin. Where “Austin’s theory seemed to reduce all legal rules to commands, Hart emphasised the multiplicity of law.”[5] Hart talked about rules that impose duties, confer powers, and apply directly to citizens. This leads to a concept that is central to Hart’s theory: the rule of recognition. “The rule of recognition expresses, or symbolises, the basic tenet of legal positivism: that there are conventional criteria, agreed upon by officials, for determining which rules are and which are not part of the legal system.”[6]
Bentham and Austin held three basic doctrines of legal positivism, of which Hart agreed. These doctrines are:
First, that there is no necessary connection between law and morals, or law as it is and law as it ought to be; second, that laws are commands of human beings; and third, ‘that the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims, functions, etc.’[7]
Hart, however, did have one argument in which he says that moral judgement is involved, which is, from my point of view, a little contrary to the first doctrine of legal positivism previously listed. “He alleges that the only moral judgment which matters for the natural-law theorist is whether or not a rule is legal. If it is legal then there is a moral obligation to obey it. If it is not then there is a moral obligation not to obey it.”[8] This opinion of Hart’s leads us to the Natural Law Theory and how it in fact differs from Legal Positivism.
What is Natural Law?
Natural law theory has existed for thousands of years and although there have been different “versions” of natural law over the centuries, the one constant that I have seen in research for this paper is the existence of a higher law. That higher law provides inherent rights to the individual, rights that only God can grant. In his view, any law that took away from those inherent rights was unjust. With this view, “Blackstone held that other government authorities had the duty to defy such so-called laws because they were unjust in defiance of the higher law: the authority of God.”[9]
One of the early natural law theorists was Sir Thomas Aquinas. He is considered a medieval natural law theorist, a version that is not exactly what we would see today. Aquinas wrote that law “is nothing else than a rational ordering of things which concern the common good.”[10] However, this statement is more of a generality as there were four different kinds of law that Aquinas identified. These four laws are eternal law, natural law, divine law, and positive law.
Bix chose to focus on the natural law and positive law in his writings on Aquinas in the textbook. He said of these two that “positive law is derived from natural law…the natural law dictates what the positive law should be.”[11] Further explaining the positive and natural law, Bix states that “According to Aquinas, positive laws which are just ‘have the power of binding in conscience’…A just law is one which is consistent with the requirements of natural law”[12] In essence, any law that is not just does not fit within the Natural Law and thus will no longer be a law.
John Finnis agreed with Aquinas and followed up his teachings by arguing that “the moral lawmaker will discern what laws to promulgate largely by deduction or derivation from morality (‘natural law’); in other words, morality is important in determining what the positive law should be.”[13] As “the most influential legal theorist of his generation working in the natural law tradition…Finnis’s work is an explication and application of Aquinas’ views: with special attention to the problems of social theory in general and analytical jurisprudence in particular.”[14]
The ethical question, “How should one live?” is a basic question that fits with Finnis’ theory of natural law. A straightforward way that Finnis would answer that question is to “obey the law” as long as it is just. This response agrees with Aquinas. An unjust law doesn’t have to be obeyed in the fullest sense of the term, but “one has an obligation to comply with their requirements only to the extent that this is necessary to uphold otherwise just institutions.”[15] Furthering the natural law theory, “Finnis’s view is that law should be understood in connection with the (moral) ideal to which it is aspiring and the (moral) function it is intended to play.”[16]
As we look at more recent natural law theorists, Tim Kaye writes that Lon Fuller is “a key figure in the recent rejuvenation of natural law theory.”[17] He rejected the Christian doctrine of natural law from the seventeenth and eighteenth centuries which is still accepted among modern natural law theorists. “Medieval and modern notions of natural law have little in common.”[18] This is no more evident then as shown by Fuller in his own version of natural law theory. “In Fuller’s view, it is impossible ‘to treat law simply as a manifested act of social power…except through a falsification of the reality on which it purports to build.’”[19]
Instead, Fuller developed his own version of natural law that he called inner morality law. “The internal morality of law consisted of a series of requirements which Fuller asserted a system of rules must meet – or at least substantially meet – if that system was to be called ‘law.’”[20]–[21] Fuller understood that his view of natural law was different from the traditional natural law theories. In fact, “he once referred to his theory as ‘a procedural, as distinguishes from a substantive natural law.’”[22] His view of natural law might best be summed up by his idea that law “is a purposive human undertaking. A legal system is ‘the product of sustained purposive effort,’ but it is a product of human effort and thus, its attainment is always a matter of degree.”[23]
I cannot end my discussion on natural law theory without discussing current U.S. Supreme Court Justice Clarence Thomas. “[I]t was the 1991 nomination of Clarence Thomas to the Supreme Court that precipitated the reemergence of natural law into contemporary legal discourse. In his pre-confirmation speeches and articles, Thomas argued passionately in favor of a clearly defined role for natural law in constitutional interpretation.”[24] However, during his confirmation hearing for his nomination to the Supreme Court, he changed his position to be merely that “his interest in natural law was limited to its utility as a political theory and not as a jurisprudential system.”[25]
Even though Justice Thomas stated such a change during his confirmation, his actions on the Supreme Court show that he truly is inclined to the natural law. “Clarence Thomas, in his tenure as Supreme Court Justice, has continued to expound a jurisprudence entirely consistent with natural law theory”[26] and that his “work on the Court is destined to be the vanguard of a powerful moral, philosophical, and legal counterrevolution steeped in the religious and moral traditions of Western Civilization.”[27]
“The cornerstone of Thomas’ appeal to natural law was the familiar and recurrent theme that the Constitution should be interpreted in a manner consistent with the higher law principles made manifest in the Declaration of Independence.”[28] He believed that the purpose of government was to protect the inalienable rights of its citizens. Those rights come from God, and natural law is the higher law that comes from God and governs mankind. It is in this belief that Thomas has ruled on cases brought before him across many areas, ranging from civil rights to the rights of life, and most recently in his finding on Dobbs that led to Roe v. Wade being overturned.
Consistent with Biblical Perspective?
Sir William Blackstone once wrote that the “law of nature…dictated by God himself…is binding…in all countries and all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.”[29] The law of nature, based on this statement from Blackstone, is consistent with the biblical perspective.
Professor Berman states that natural law theorists “believe that one cannot know what the law is unless one considers at the same time what it ought to be, since…they are to be analyzed, interpreted, and applied in the light of the moral purposes for which they exist.”[30]
In the Old Testament we read, “Assemble the people—men, women and children, and the foreigners residing in your towns—so they can listen and learn to fear the Lord your God and follow carefully all the words of this law.”[31] This verse may not directly show that the natural law is consistent with biblical perspectives, but it starts us on the path. One can’t analyze, interpret, or apply it in the “light of the moral purposes for which they exist” unless they listen and learn and follow the words of God’s laws. In Psalm 119, this theory of learning the higher law continues. “I will praise you with an upright heart as I learn your righteous laws. Thanks be to God, who delivers me through Jesus Christ our Lord!”[32] Later in the same chapter we read:
I seek you with all my heart; do not let me stray from your commands.
I have hidden your word in my heart that I might not sin against you.
Praise be to you, Lord; teach me your decrees.
With my lips I recount all the laws that come from your mouth.
I rejoice in following your statutes as one rejoices in great riches.
I meditate on your precepts and consider your ways.
I delight in your decrees; I will not neglect your word.[33]
Having the law written in our hearts, meditating on the precepts, considering God’s ways… this is what Berman referred to as the natural law theory. It is very much consistent with the biblical perspective.
For the positivist view, Berman states that “positivists analyze the rules of law existing in a given polity at a given time independently of principles of right and wrong and independently of the history or social consciousness of the given polity.”[34] Again we have a theory in which we see the admonition to analyze the rules. But this view goes beyond that by analyzing the rule based on the social constructs of the times. Because of this, I do not believe this theory to be consistent with the biblical worldview. In Isaiah, “The Lord says: These people come near to me with their mouth and honor me with their lips, but their hearts are far from me. Their worship of me is based on merely human rules they have been taught.”[35] See here how Isaiah teaches the frailty of human life to have all rules of a law not based off of what is right and what is wrong, but rather whatever history or social conscience it relates to.
In summary, “natural law theory considers the connections between the universe, human nature, and morality… Legal positivism is the belief that it is both tenable and valuable to offer a purely conceptual and/or purely descriptive theory of law, in which the analysis of law is kept strictly separate from its evaluation.”[36] One is based on the law being good because it is moral, the other is based on the law being good because the majority accepts it. It is like comparing laws given by God to laws created by man. God’s laws are taught in the Bible and are eternal. Man’s laws are neither.
Contemporary Legal Issue – Legal Positivist Perspective
One contemporary legal issue that our nation has faced that I believe exemplifies a legal positivists perspective is the legalization of marijuana. Given that marijuana is not legal in every state, not even for medical use, this is an issue that is in-process of widespread acceptance around the country. “In 2012, proponents of marijuana legalization gathered enough signatures to place an amendment to the Colorado Constitution on the statewide ballot…Proponents asked Colorado voters to launch a great social experiment: the legalization of marijuana by the State of Colorado despite the substance’s federal illegality.”[37]
Termed a social experiment, Colorado Amendment 64 falls in line with the positivist theory in that the citizens of Colorado were being told various things to show how beneficial (not immoral) the decriminalization of marijuana would be. “Proponents addressed young adults with the marijuana-like-alcohol theme and told soccer moms that taxing marijuana would supplement depleted education budgets.”[38] There was also the state’s successes in regulation with medical marijuana use that helped, and “may also be one of the main reasons why voters chose to permit the growth and sale of marijuana for non-medical purposes.”[39] As a result, the majority of voters saw the evaluation of the law with its financial, regulatory, and decriminalization benefits without an analysis of the law and its conflicts with moral societal standards.
Since the passage of Amendment 64, we have seen additional states pass similar amendments allowing for more widespread use of medical marijuana, and additional states that have decriminalized its recreational use.
Contemporary Legal Issue – Natural Law Perspective
One contemporary legal issue that our nation has faced that I believe exemplifies a natural law perspective is the debate over abortion rights. This is actually an issue that may be argued as falling in line with the positivist perspective as well…depending on how you approach the argument. “Consider how the right to abortion is a group right created at the expense of the individual in utero person’s right to life.”[40] A statement such as this one coincides with the thought of the positivist in that “the analysis of law is kept strictly separate from its evaluation.” Analysis of the morality of abortion rights was kept out of the discussion while the evaluation of the good of Roe v. Wade was kept at the forefront.
I believe that the issue of abortion rights is more exemplifying of the natural law theory. “Unquestionably, the right to self-preservation and hence the right to life is an intuitive and logical extension of natural law that counters the artificially created right to kill a pre-born human being.”[41] In the Declaration of Independence, our nations founders declared “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”[42] The declaration of these unalienable rights provides “connections between the universe, human nature, and morality,” that the rights come from God, the creator of the universe and that preserving life is a moral decision, right, and obligation.
With the recent decision of the Supreme Court in Dobbs v. Jackson Women’s Health Organization, “petitioners defend[ed] the [Mississippi Gestational Age] Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.”[43] The term “rational-basis review” fits with the natural law basis supported by Blackstone and his statement that “no human laws are of any validity if contrary to [natural law]…dictated by God himself.” John Finnis’ statement, quoted earlier and shared again here states that “the moral lawmaker will discern what laws to promulgate largely by deduction or derivation from morality (‘natural law’).” Roe and Casey were two legal decisions that did not derive from morality. Those landmark cases would better fit the positivist perspective, but that perspective does not make them right. The Supreme Court held that “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”[44] The people can now evaluate the laws that may be presented to them (for allowing or not allowing abortion) and determine if they are moral, just, and good laws.
[1] Deryck Beyleveld & Roger Brownsword, Law as Moral Judgment vs. Law as the Rules of
the Powerful, 28 AM. J. Juris. 79 (1983).
[2] Johnny Davis, Conservative Betrayal, Natural Law and Legal Positivism, 1 (May 10, 2021). https://ssrn.com/abstract=3842703 or http://dx.doi.org/10.2139/ssrn.3842703 (accessed Oct. 8, 2022).
[3] Brian Bix, On the Dividing Line between Natural Law Theory and Legal Positivism, 75
NOTRE DAME L. REV. 1613 (2000).
[4] Davis, supra at 1.
[5] Bix, supra note 2, at 40.
[6] Bix, supra note 2, at 41.
[7] Id.
[8] Beyleveld & Brownsword, supra at 15.
[9] Davis, supra at 1.
[10] Kaye, supra at 310.
[11] Bix, supra note 2, at 72.
[12] Bix, supra note 2, at 72.
[13] Bix, supra note 6, at 1620.
[14] Bix, supra note 2, at 77.
[15] Bix, supra note 2, at 79.
[16] Bix, supra note 6, at 1622.
[17] Kaye, supra at 313.
[18] Lord Lloyd of Hampstead & M. D. A. Freeman, Introduction to Jurisprudence 142 (5th ed. 1985).
[19] Breckenridge, supra at 954.
[20] Bix, supra note 2, at 87.
[21] The demands of internal morality are: “The generality of law (laws must consist of general rules); promulgation (citizens must know what is expected before they can obey); retroactive laws (a system which is made up solely or largely of retroactive laws could not function); clarity in the law (necessary for obedience); contradictions in the law (these produce chaos); laws cannot require the impossible; laws must maintain some degree of constancy through time; and there must be some congruence between official action and the declared rule if chaos is to be avoided.” Breckenridge, supra at 957. See also Lon Fuller, The Morality of Law 33-91(1969).
[22] Bix, supra note 2, at 88.
[23] Breckenridge, supra at 957.
[24] Kirk A. Kennedy, Reaffirming the Natural Law Jurisprudence of Justice Clarence Thomas, 9 REGENT U. L. REV. 35 (1997).
[25] Id. at 36.
[26] Kennedy, supra at 36.
[27] Kennedy, supra at 37.
[28] Kennedy, supra at 50.
[29] Herbert W. Titus, God, Man, and Law: The Biblical Principles 20 (1994).
[30] Harold J. Berman, Faith and Order, The Reconciliation of Law and Religion 290 (2020).
[31] Deuteronomy 31:12 (New International).
[32] Psalm 119:7 (New International).
[33] Psalm 119:10-16 (New International).
[34] Berman, supra at 290.
[35] Isaiah 29:13 (New International)
[36] Bix, supra note 6, at 1615.
[37] David Blake & Jack Finlaw, Marijuana Legalization in Colorado: Learned Lessons, 8
HARV. L. & POL’Y REV. 359 (2014).
[38] Id. at 361.
[39] Id. at 365.
[40] Davis, supra at 3.
[41] Kennedy, supra at 57.
[42] The Declaration of Independence para. 2 (U.S. 1776).
[43] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).
[44] Id.
A View From A Palmtree 