This Article is written by Shagufta Ramzan, a Fourth-Year Law Student of University Law College, Quetta

Introduction:

The relative merits of positive law and natural law have been the subject of an ongoing and fruitless discussion among legal scholars and philosophers. Although both legal theories are interconnected and frequently cross paths when laws are being passed and amended, their main objective is further developing the cause of justice. Positive law emphasizes community norms and governmental authority in enacting and upholding laws, while natural law asserts the existence of fundamental and universal principles that guide human behavior. This assignment seeks to examine the relationship between natural law and positive law in legislation, emphasizing the pursuit of justice as one of their common goals while showing the differences between them.

I. Natural Law: Universal Principles Guiding Justice:

Natural law states the existence of inherent moral and ethical principles that are independent of laws produced by humans and are universally applicable. Natural law supporters argue that introspection and reason can reveal these principles. The evolution of natural law theory has been profoundly influenced by notable philosophers like Aristotle and Thomas Aquinas. The key components of natural law include:[1]

a) Universality and Objectivity: Natural law theorists posit that ethical principles are inherent like human beings and the world, transcending cultural and temporal boundaries.

b) Inherent Human Rights: Natural law recognizes the existence of fundamental human rights that are innate and not contingent on legal recognition, serving as a basis for just and fair legal systems.

c) Morality as the Foundation of Law: Natural law theory suggests that moral principles provide the basis for just laws, highlighting the inseparable connection between morality and legal systems.

II. Positive Law: Legitimacy through Governmental Authority and Social Conventions:

Positive law is shaped by societal norms in certain historical and social situations and draws its legitimacy from political authority. It recognizes that human authorities establish and implement laws. Positive law's main components include: [2]

a) Social Convention and Legal Positivism: Positive law proponents argue that laws are products of social conventions and derive their authority solely from governmental sources. According to Hart’s theories, laws are made by people using established practices and acknowledged/recognized authorities. This viewpoint highlights the fact that societal and cultural acceptance and well-established norms inside a community are the source of a law’s validity. Based on Hart’s legal positivism, legislation is only valid and legitimate if it complies with correct legislative procedures and has no bearing on its moral content.

b) Legal Authority: Positive law recognizes the significance of legislative bodies and governmental institutions in the creation, interpretation, and enforcement of laws within a given jurisdiction. In his legal discussion of the functions of legal power in the enactment and application of laws, Hart explains and highlights the significance of legislative assemblies and as well as other governmental authoritative establishments. Hart presents the idea of the “rule of recognition,” a social norm that defines what, in a legal system, is considered to be a legitimate law, by providing a clear and understandable structure for the creation and application of laws.

c) Stability and Predictability: Positive law emphasizes the need for legal systems to provide stability, predictability, and equal treatment under the law to ensure societal order and cohesion. Hart asserts that establishment stability and predictability in societal interaction serve the main purpose of positive law.

III. The Correlation between Natural Law and Positive Law in Legislation:

Although there is still disagreement over whether natural law or positive law is preferable, it is clear that the two systems are related and frequently cross paths during the legislative process. Natural law principles are used by legislators and policymakers to create and change laws, ensuring that they are consistent with moral ideals and the pursuit of justice. The following viewpoints can be used to observe the relationship between natural law and positive law in legislation:[3]

a) Moral Foundation of Legislation: Legislators often consider natural law principles as a moral compass when formulating laws, seeking to promote justice and fairness in society.

b) Constitutional Frameworks: Many constitutions incorporate natural law principles as a basis for fundamental rights and liberties, guiding the interpretation and application of positive law.

c) Judicial Interpretation: Courts may refer to natural law principles to interpret positive law in cases where legal ambiguity or conflict arises, ensuring their compliance with fundamental moral principles.

Positive Law or Natural Law:

“Every generation, it is said, finds a new reason for the study of natural law” -Heinrich A. Rommen [4]

The previously mentioned assertion underlines how ongoing the conflict between natural law and positive law is. Natural law theorists and legal positivists have had different perspectives on what constitutes law ever since the formation of an organized society.[5]

Governments and other human institutions build positive laws, which are then maintained by the state. This indicates that it is dependable, stable, and offers a distinct framework that individuals can hold to. Positive law is predicated on the notion that since laws are made by humans, they can be modified or altered as society advances. It is governed by the state and intended to give society a secure and predictable framework within which to operate. This implies that you should expect the state to penalize you if you disobey the law.

Natural law, on the other hand, is based on a universal moral code that can be found in nature and is easy to comprehend by reason. The foundation of natural law is the belief that there is a moral rule that governs all of existence and that it may be discovered by reason. Individual freedom and morality are given precedence over consistency and predictability. Natural law is founded on the notion that moral and just laws should be based on underlying principles that apply to everyone and everywhere.

However, putting natural law into action can be challenging. This is because it might be challenging to decide what is fair and moral in a particular circumstance. Natural law can be ambiguous and subject to different interpretations, which makes it challenging to consistently apply. The decision between positive law and natural law ultimately comes down to what you value more: consistency and predictability or morality and individual rights. Positive law is a superior option if stability and predictability are important to you. Natural law is a superior option if you value morality and individual rights.[6]

Conclusion:

In conclusion, there is still disagreement over whether natural law or positive law is preferable. Both views support the fundamental objective of justice and are inescapably linked. Positive law emphasizes the significance of governmental authority and societal customs in the creation and enforcement of laws, whereas natural law offers an all-encompassing and objective framework based on fundamental moral truths. Natural law principles frequently guide the creation of reasonable and morally sound legislation, demonstrating the relationship between positive law and natural law at the point where these two systems overlap during the legislative process. The establishment of a legal system that upholds justice, fairness, and the rights of individuals within society is ultimately their shared goal.

References

[1]Thomas Aquinas, Summa Theologiae (Cambridge University Press 1997).

[2] HLA Hart, The Concept of Law (Oxford University Press 1994)

[3] John Finnis, Natural Law and Natural Rights (Oxford University Press 1980).

[4] Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Liberty Fund Inc 1936).

[5] L L Fuller, The Morality of Law (Yale University Press 1964).

[6] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford University Press 1994).