“Law is invariably constructed as a response to conflict or, specifically, to a given social problem; it is a mechanism that attempts to control certain kinds of activities or behaviours” (Boyd, 2007, p. 45). Every citizen in our society is affected by the law in one shape or the other. As such, this paper will examine that as students and analysts of law’s evolution we should accept both natural law and positivism. Consequently, this essay will gauge the strengths and weaknesses of this claim.
Indeed, this is paramount as our beliefs and values in relation to law define us as citizens within our given society, they are shaped and influenced by economics, morals and politics (Boyd, 2007, p. 5). Subsequently, this essay will examine natural law to determine its strengths and weaknesses and then juxtapose positivism’s strengths and weaknesses by using the same examples in both perspectives to produce a clear and coherent examination of natural law and positivism to analysis the pros and cons regarding both perspectives.
This paper is by no means an in depth examination of natural law and positivism due to time and space, but a brief synopsis of the strengths and weaknesses of embracing both natural law and positivism. According to Boyd (2007), natural law states that there is a clear connection between law and morality; if the law is not based on justice then it is rendered invalid and should not be classed as law. Furthermore, Boyed (2007) posits that natural law has a long history that can be dated back to more than 2500 years ago in the context of Western development.
This connection between law and morality serves as an impetus for human rights and social justice. For example, Boyd (2007) highlights the case between R. v. Caine. Caine postulated that incarceration regarding the possession of marijuana is tantamount to a violation of the Charter of Rights and Freedoms, as such it is unconstitutional and in essence an affront to democracy and our civil liberties. One of the strengths of natural law is this very notion of the symbiotic relationship of law and morality.
By this I mean morality is subjective, some would argue that possession of marijuana is neither immoral, illegal nor unethical. One of the weaknesses of the law being connected to morality is the fact that one may determine that stealing from the wealthy is not morally wrong. Therefore, Pandora’s Box would be open and chaos may reign. Natural law as stated previously is about the connection between law and morality, a weakness within natural law is it application to ideology.
For instance, the Nazi’s invoked natural law to justify their barbaric treatment of Jews, Gypsies and ‘inferior people. ’ “The problem is that we cannot establish the moral justification through legal theory as long as we are weeded to a theory that connects law with a particular society’s underlying ideology because evil ideologies leave room for justification only through political theory, if at all” (Soper, 2007, p. 209). Furthermore, Soper (2007) posits that natural law displays our attitude in relation to what our sovereign determines is moral.
For example, the neoconservatives in America thought it morally right to invade, destroy and kill in the name of democracy. Thus, they convinced the American public that the Iraq war was a just war in the name of freedom and democracy. However, the justification for the invasion of Iraq turned out to have been based on a pack of lies. Conversely, a strength within natural lies also lies in its application of ideologies. For instance, Switzerland is a tolerant and progressive country and it remains neutral due to its ideological neutrality.
This in turn is a basis for its natural law. “Positivism is defined by the Oxford Reference Dictionary as the “the theory that laws are to be understood a social rules, valid because they are enacted by the ‘the sovereign’ or derive logically from existing decisions, and the ideal or moral considerations (e. g. , that a rule is unjust) should not limit the scope or operation of the law” (Boyd, 2007, p. 6). As such, morals regarding the enforcement of the law are of little value.
One of the strengths of natural law is that it produces stability and structure between right and wrong; it clearly defines what one can and cannot do regardless of their moral beliefs. One of the weaknesses of this concept is that human rights and social justice may be sidelined in the name of dogmatic principles. For example, in 1923, marijuana was classified as a prohibited drug. This consequently, gave unprecedented powers to the police to search any premises without a search warrant based on the fact the police had held suspicions of its use (Boyd, 2007, p. 51).
This in and of itself if problematic, insofar as to what grounds are used for suspicion? Positivists claim that the legal process within a positivist approach is concerned with protecting out fundamental civil liberties, democracy and it ensures that the powers that be do not breach our trust and faith in them (Boyd, 2011, p. 7). This very statement carries both a strength and a weakness. By this I mean if the law applies to all regardless, then indeed it does shield us from injustice, however, this is not always the case. There are a copious amount of political scandals that appear weekly in the news.
Therefore, it would seem that the weakness of positivism is that those who create and enforce the law break the law. Moreover, why should the government force their interpretation of the law on us, and imply they have a higher moral standard by doing so? If positivism had reigned during the Nazi era and the past German government had abided by positivism, i. e. protecting our fundamental civil liberties, the atrocities by the Nazi’s would not have existed. The strength in this concept of positivism would be the protection of liberties and freedom as Boyd (2007) postulated previously in the preceding paragraph.
In addition, if positivism was invoked and adhered to by the powers that be, the invasion of Iraq would not have happened, as life, liberty and the pursuit of happiness are enshrined in their constitution. Conversely, as was stated in the preceding paragraph the creators and enforcers of the law often do not abide by their own laws, this is an inherent weakness within positivism, positivism can be utilized by the ruling elite to contain and control people and more importantly it can be used subjectively by a select few which in turn makes it undemocratic.
In conclusion, I have examined the strengths in natural law, these being that it may protect our civil liberties, human rights and protect democracy itself. It can be utilized to invoke common sense such as with the possession of marijuana. Moreover, if applied consistently it may stop aggressive governments from committing illegal acts, such as the Nazi’s and former neoconservatives in America. The weaknesses of natural law is that morals are subjective and people may use this excuse to commit crime like theft based on their interpretation or morality and justify their warped ideology.
Nevertheless, positivism strengths are it produces stability and structure regarding what is right and wrong. As Boyd (2007) stated earlier, it concerns itself with safeguarding our fundamental civil liberties and democracy. Alternatively, the weakness in positivism is that it can be manipulated by the ruling elite and as such, they may abuse their powers since they created the laws themselves. Therefore, as students and analysts of the law we must embrace both natural law and positivism even though they both have their strengths and weaknesses, in order to strike a balance and incorporate a holistic approach to the law.
However, who should determine the nature of law, the people or the ruling establishment? In the words of Voltaire; “It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets. ” Reference List Boyd, N. (2007). Canadian Law An Introduction. (5th ed). Nelson Education Ltd. Toronto. Soper, P. (2007). In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All. HEINONLINE (2-25). Retrieved from http://heinonline. org Goodreads: Quotes about law. Retrieved from http://www. goodreads. com/quotes/tag/law