Legal positivism is a philosophical theory that holds that the foundation of law determines all positive social norms. Thus, it is socially constructed and mandated by the legislation. For instance case law and common law are forms of legal norms, and by following these laws one will be considered right and just. Thus, the theory holds that legal obligations supersede moral obligations. A law does not have to be morally sound to be considered right or legal according to the law of positivism. Thus, there is no ethical code applied to legal positivism because it follows the rules set forth by the law. Essentially, the law of positivism adheres to conventional legal standards and holds that law is the basis for positive norms in society.
Thus, the law of positivism is not a natural law. It is created through legislation, and sets traditional society norms for citizens to follow. It only seeks legal justification to validate the rightness or wrongness of a particular act. For instance, for criminal laws, judges and the jury decide whether or not a person is guilty or innocent. Thus, the judge’s decision forms the basis for that particular act because it is based on certain laws. Thus, legal positivism only seeks legal justification and does not take into consideration the moral implications.
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"Legal Positivism Theory".
Natural law holds that humans are naturally endowed with moral virtues such as justice, courage and temperance, and thus societal laws should follow moral standards. In order for justice and harmony to exist in a society, natural law contends that morality must be held on the highest standard. Decisions should be made based on ethical and moral basis, rather than just legal ramifications. Thus, the law contends that not all laws are right because all laws do not take into account the moral aspect of justice. Thus, natural law holds that immoral behavior is unnatural since humans are naturally moral. Thus, laws should reflect the natural way of life for all people and should be morally binding.
Natural law holds morality as the ultimate standard for justice is morality. It does not take into account legal rules and laws that do not hold true to moral and ethical standards. Thus, natural law holds that morality is natural and since humans are inherently moral, than laws should be based on ethical standards of morality. Thus, this will help to ensure a harmonious and just society, which is essential to the overall growth and well-being of the world.
Thus, there is a direct difference between legal positivism and natural law. Law of positivism is not concerned with moral and ethical standards. It holds that law is superior to morality, and thus anything that is legal is positive. Thus, natural law can be viewed by some philosophers as opinionated and not fact-based, which makes it appear as untruthful. But theory of natural law holds that some laws, regardless of their legal standing, are not moral, thus should not be enacted. The law holds that if legal rules are not based upon the foundations of morality, than, they are not just or right. Ultimately, the difference between law of positivism and natural law is the basis of morality.
Essentially, natural law holds that morality is superior while law of positivism holds that morality is inferior to laws. Thus, the major difference between the two theories lies in its belief or nonbelief in the value of moral standards. Legal positivism contends that laws are the power of the land and determine whether or not an action or behavior is just and right. But the natural law holds that without morality, laws are not just, and the only way to create harmony and justice in society is to abide by the natural law of morality.
