Legal Positivism and Natural Law

The Law in its generic sense can be understood to be; “a body of rules of conduct of binding legal force and effect, prescribed, recognised and enforced by a controlling authority” – Free Online Dictionary (2019). The law sometimes clashes with the moral judgement of society. One of the oldest discussions in legal academia is the relationship between Law and Morality hence the legal thoughts of Legal Positivism and Natural Law emerged.

Morality on the other hand is a set of principles and values upheld by a society to determine ‘right’ from ‘wrong’. Law and Morality somehow diverge and can also be differentiated in many ways. For example, its is deemed morally wrong to tell a lie, however, it isn’t against the law to do so. It must also be added that, to lie under oath could warrant a charge of perjury under the law. Morals can change over time and are not shared by all members of society. Generally, morals are based on the dominant religion in a particular society.

The main religions from which western morality is attributed to (Christianity, Islam and Judaism), denounce Homosexuality. The Sexual Offences Act 1967 and also Equality Act 2010 makes the practice permissible under the law in England and Wales. In legal jurisprudence, legal positivists like Jeremy Bentham and H. L. A. Hart believe that: “the Law does not require moral validation to be legitimate” and that law is the separation of ‘what is’ and ‘what ought to be’ (Morality). Bentham dismisses natural law as “nonsense on stilts”. This brings to bear the Fuller v Hart debates in the 1950’s.

However much the legal positivists disagree with the relevance of morality to law, a cogent argument can be made to establish the palpable link between the two. Natural law proponents, Aristotle, Aquinas, Dworkin and Lon Fuller maintain that laws must be predicated on morality. Law bereft of morality defeats the very essence of its existence (Fuller 1950). In summary, the law must enforce and promote the values of morality. There are many instances of agreement and unity between morality and law.

There have been high profile cases that bear testimony to the fact that the law is influenced by morality. One of such cases is R v Brown (1993), where a group of men were involved in sadomasochistic sexual acts. The men believed they couldn’t be prosecuted since they all consented to inflicting pain on one another and the act occurred in private. The House of Lords (HOL) found them guilty under the Offences against the Person Act (1861). The judges ruled that: it is legally wrong to indulge in such acts as their actions have the tendency of corrupting public morals; one which the law must protect.

Having examined both sides of the Hart v Fuller debate, I propose that the law in many cases enforces morality but the morals of society are constantly changing, in which the law is failing to keep up. Nonetheless, there cannot be an entire separation between law and morals as they are somewhat parallel. Most fury is caused when the law tries to force its idea of morality on a pluralist society. E.g. Mr David Cameron threatened to cut aid to countries which did not legalise gay rights (BBC, 2011). This seemed to cause an uproar to the African recipient countries as Mr Atta Mills, then President of Ghana said “Ghana’s ‘societal norms’ were different from those in the UK”.