Legal positivism is the group of legal theories which represent the view that law is comprised of the rules and operative machinery found within a state’s jurisdiction so long as it has been legitimately imposed, and in its purest and extreme sense, regardless of religious or moral content. The fact that this law is imposed, or posited, resulted in the name Positivism.
Closer to the context of this article, legal positivism can also be described as a school of thought which argues that the conditions of legal validity are purely a matter of social facts. It is neither a simple nor a single doctrine. This basis of legal positivism involves two separate claims, namely the Social Thesis and the Separate Thesis.
The social Thesis asserts that the law is a social phenomenon, and that the conditions of legal validity consist of social facts. These facts, such as an act of legislation or a judicial decision are the sources of law.
The Separation Thesis on the other hand maintains that there is a separation between law and morality i.e between what the law is and what it ought to be. This thesis concerns itself with the conditions necessary for legal validity.
The legal positivism doctrine has undergone many changes, one of which has been the emergence of a contemporary school of thought under positivism, known as Inclusive Legal Positivism. This school endorses the Social Thesis, agreeing that the basic conditions of legal validity derive from social facts such as social rules or norms which happen to exist in a given community. On the other hand, Inclusive Legal Positivism does not fully agree with the Separation Thesis. It instead argues that legal validity is sometimes a matter of the moral content of the norms, depending on the specific conventions that happen to prevail in a given society. It must be clarified though, that Inclusive Positivism maintains that such dependence of legal validity on moral considerations is a contingent matter. Traditional or exclusive legal positivism maintains that a norm is never rendered legally valid in in virtue of its moral content.
The other school of thought that is considered to be the opposite of legal positivism is the Natural Law school of thought. Natural law denies that the conditions of legal validity are purely a matter of social fact. It argues that the moral content of the norms decides their validity. Natural law is formed upon the principle that although man exists in nature he has his own nature. The nature of man is to procreate, protect his family, and preserve his life. Natural law is the law which helps man achieve these objectives. This natural law is superior to any other law. The main controversy or disagreement between these two schools of thought concerns the conditions of legal validity, and that is what I shall seek to address in this article.
My opinion tends to lead toward the positivist side, with a few pickings from natural law. I agree that “law cannot be romanticized as the result of a set of metaphysical laws ‘out there’ but must be understood as a cultural and contingent fact.” My sympathies lie with Kelsen when he said that the moral value of a law is one thing; it’s validity as a law is another. Thus validity is in now way concerned with content. A law is valid because it is created in a certain way. I am of the mind that there needs to be a clearly prescribed way of making laws, and a clearly prescribed source. Morals or morality rarely have the level of clarity that is require for us to base the formation of law on them. The law needs a strong, firm and stable foundation to be grounded upon, and morals might not be able to provide this. This is because morals change from one period to another – an example being what was considered as morally unacceptable thirty or forty years ago might be quite morally acceptable now, in the new century. Also morals change from nation to nation, from society to society. It is not desirable to have such a shape shifting source as the foundation upon which our law is built. If the law is based on morality, then a question would arise as to then nature of morality, or moral values. Are they objective or subjective? If they are subjective, as we have seen, does that also not make legality subjective? And what position does this now put us in?
The idea that law must pass through some kind of moral filter in order to become law is rather unrealistic within the present world as we know it, within our present legal system. From whom would this moral filter emanate? If it would come from a higher power, which higher power would it be? The Christian God? The Muslim God? Hindu or Buddhist? When the law is immoral, it is immoral according to whom?
It is simply difficult to maintain that morally bad law is not law. A good example in our society is when our members of parliament raise their salaries to astonishing levels. They do it legally in that they follow all the steps prescribed by law for the raise to be legally valid, but is it morally valid? Is it morally upright that in a nation where almost half the people live under the poverty line, i.e on less than 70 shillings a day, its leaders who are already well off raise the salaries to a level that is higher than parliamentarians in the first world? Is there morally acceptable when there are Kenyans dying of poverty everyday? Of course, morally, such a raise fails the test. But it would still be legal, and it legality would stand the test of a court of law.
A lot of the time it is said that moral convictions come from within us, from where exactly we know not, but we are expected to have an internal moral compass that helps us differentiate wrong from right. The law has been around for a long, long time; when we were born we found it here. There then seems to be something amiss with the notion that we should go ahead and mold this law into the shape of our moral convictions, the source of which we know not. The source of which is ‘metaphysical’. This line of thinking was expounded upon by a member of the Scandinavian Realist school of thought; Karl Olivecrona. He stated: “Everyone grows up in a community where legal machinery has existed since time immemorial… The law certainly cannot be a projection of some innate moral convictions on the child, since it has existed long before the child was born… it is the existence of the law, and the knowledge of the force that lies behind it, that is one of the chief factors in the molding of our moral standards, not the other way round.”
On the other hand, it cannot be denied that moral opinions or convictions have played a part in forming and influencing law. In the same way, law has played a role in forming moral opinion. it is evident that there are certain points where law and morality intersect, places where they overlap. This is necessary, and goes to show that the two are not mutually exclusive, but in fact may both be at their best where they coincide. Perhaps a better law would then be one that is valid through a combinations of facts and moral considerations. Many of the world’s constitutions invoke the name of God, and as they are the basis for the laws of their respective countries, natural law, or morals still play a part in the formation of modern laws.
Now that I have discussed why the law must be understood as a cultural and contingent social fact, we can move on to why it is no longer possible to hide behind ideas of natural law as a justification for sometimes unjust laws. The method I shall use here is a criticism of natural law, striving to show why it’s tenets might not be sound and thus should not be used to justify law, least of all unjust law.
Natural law lawyers justify positive law and its enforcement on the ground that it is needed because of man’s badness. At the same time their doctrine requires an assumption that man is good, because it is from human nature that the principles of natural law are to be deduced. Thus natural contradicts itself.
Saint Augustine, one of the proponents of natural law, spoke on the validity of law, stating famously “Unjust law is not law“. He said that where the law might be unjust by being contrary to human good, such a law should not bind in conscience but should be obeyed in order to avoid scandal or disturbance. A man should even yield his rights for such a law. He went on to say that where law is unjust through being opposed to the divine good i.e the church, such a law was not to be obeyed. Augustine held the rights of the church over the rights of man. He held the rights of religion, a metaphysical thing, over the rights of man, the very being whose well being natural law claims to be constituted for. This kind of thinking to me does not seem sensible, for the church, and all religions as such, were made for the benefit of man. The opposite is n not true.
Natural law has been altered many a time to suit its followers. During the crusades, the Christians relied upon it to justify the slaughter of non-believers and later relied on it to discourage such barbaric ;happenings’. The Muslims used natural law to justify the killing of infidels. Natural law was relied upon to justify slavery, and later was used as a reason to abolish it. It seems increasingly evident that Ross was right on the money when he said that: “…like a harlot, natural law is at the disposal of everyone.”
Ergo, for a law to be justifiable, instead of seeking the solace of natural law, it must be supported by sound reason, grounded in human knowledge.