- April 20, 2012
- Posted by: essay
- Category: Sample essay papers
The development of law was accompanied by the emergence of various theories representing different views on the essence and nature of law. In this respect, it is worth mentioning the natural law and legal positivist approach to law, which are fundamental for many modern legal systems. At the same time, it should be said that that the positivist and natural law are quite different and often they contain antagonistic ideas.
First of all, it should be said that the natural law implies that the law exists naturally since its content is set by nature (Kainz, 2004). What is meant here is fact that the natural law is the law that exists everywhere and it exists permanently since people cannot change the nature and they live in accordance to the natural law since the moment of their birth. In this respect, it is important to lay emphasis on the fact that proponents of the natural law, such as John Locke, Jean Jacque Rousseau, David Thoreau, and others insisted that people have natural rights which lay the foundation to the natural law that regulates human life and social relationships (Robinson & Groves, 2003). In such a way, they argued that the natural rights as well as natural law could not be violated since every individual had these rights. Hence, the natural law turns out to be irrelevant to specific time or place or environment, where it is applied, but it is based on some fundamental concepts of natural law which are taken by members of the society for granted.
In contrast to the natural law, the positivist legal approach extends the concept of law onto the specific sphere of human relations. To put it more precisely, the positivist legal approach does not actually view the law as an abstract concept which is historically accepted by the society as a norm. Instead, positivists stand on the ground that the law is created by human beings, but it is not inherited naturally. In contrast to the natural law, the positivist legal approach rejects the principle of natural rights which people inherit since the moment of their birth. In actuality, positivists argue that human beings accept laws and legal norms which are established within the society. These legal norms can be created intentionally or not but they are a sheer product of human thought. Positivists developed various interpretations of this concept, which vary in form but remain similar in their essence. For instance, John Austin argued that positive laws are commands of a sovereign, while Holmes believed that positive laws are decisions of a court. In such a way, the essence of a positive law is that it is a decision. According to Luhmann, “we can reduce this concept of positive law to a formula, that law is not only posited through decision, but also is valid by the power of decision”ť (Horster, 1997, p.143). Hence, the distinct feature of the positivist law is the role of humans and authorities in the creation of legal norms.
In conclusion, it should be said that both legal approaches discussed above are noteworthy since it is hardly possible to disagree that all people are naturally equal and they are born without any knowledge of law but still they live in accordance with these laws. On the other hand, it is impossible to deny positivist idea that people live in accordance to laws which are created by human beings.