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Philosophies of Law: The place of legal positivism and natural law in legal education

Philosophies of Law: The place of legal positivism and natural law in legal education

Posted by justis1 | 01 October 2015

Determining the exact place which legal positivism and natural law as legal philosophies have in law can be difficult for students when first presented with these theories. Both are philosophical theories concerning the genesis of the legal systems; often being treated as rival views.

The theory of natural law historically referred to the use of the power of human reasoning to determine the rules of moral behaviour binding the human being.

Jurisdictionally speaking, English jurisprudence is founded on natural law. According to Thomas Aquinas, a proponent of the theory, its basic merit is based on the metaphysics of morals, namely their placement in divine providence and the universality of the character of norms. Therefore natural law recognizes certain universal values, which have judicial recognition through the legal tradition.

Contrasting views to those introduced by the theory of natural law are represented in legal positivism. This premises the law as valid on the basis of its source rather than the merit, hence the theory completely ignores the notion of legal morality. According to H.L.A Hart’s separation thesis, which distinguishes morality from legal obligation, is the essence of legal positivism. Legal positivism denies divine influence and natural reasoning, leaving justice in the hands of authorities responsible for making law.

As a law student I was introduced to the basics of legal theory during my first year of study, but remember little about either natural law or legal positivism. This is unfortunate as I believe that an awareness of both of these are necessary foundations for anyone undertaking a study of the law. A law degree should embrace the humanities and social sciences with its interaction with politics, history and philosophy.

From my experience this knowledge, even though purely theoretical, should be inherent in every legal practitioners learning. I plead guilty to being a little bit too much of the theorist. I cannot be charged for that, right?

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