Natural law and positive law may also be thought of as nature versus nurture; are we taught to behave the way we do or are we naturally inclined to understand what is right and what is wrong? Philosophers and people of the like such as Thomas Hobbes or John Locke take different looks on man and his ability to be good and evil. Locke believed that people are predisposed to be good and moral on their own1, but can people really inherit or have genetics that tell us to be able to differentiate between good and bad, or similarly right and wrong?
Thomas Hobbes contradictable to Locke believed that peace would be sustained among people only if there was written law because man is not naturally good and moral2. Society cannot live in anarchy; people need to have a set of rules in order to live a peaceful and orderly life. Therefore, positive law must exist to ensure societies survival because not all people are capable of natural goodness and morality. With natural law comes a very controversial subject: the mind of a psychopath and the idea that biological differences can make us sway from morality.
If genetic changes in the human brain can result in disorders like autism and make every single human being so individual from the next, could it not make someone have the urge to rape or kill another? Serial killers along with psychopaths have been found to have cognitive differences that do not allow them to feel empathy or remorse, or in general have the ability to control their urges to kill3. Therefore if some people do not possess the ability to control their actions and have a sense of conscience when it comes to killing or raping someone, how can society function?
For these people that cannot differentiate between moral and immoral we need a set of laws, or positive law, which keeps these criminals within a set of guidelines because said natural law does not apply to them. They are likely still committing their crime if there brain is chemically destined to, but there will now be consequence for action. For those who do follow natural laws, it is necessary to protect them from those who do not. This is why a set of positive laws is absolutely crucial to society.
If you look at children and teenagers for example, some as they grow older tend to push the limits more and more. Whether it is speeding in a car, stealing, or vandalism, these behaviours need to be controlled or else society will live in pure chaos. We need laws to reprimand those who behave in these manners in order to protect those that do not. If there were no government or laws, there would be complete anarchy. In anarchy a man can exercise his own free will, but while fulfilling their own indulgences, a society would tear at the seams with such a level of selfishness5.
Because of this, anarchy would spell the end and destruction of many parts of society such as the family, education institutions, and justice systems because anarchy is life free from man-made laws6and everyone would just exercise their free will as they please. More than anything however, positive law allows us (most of us) to live in a morally right way with a piece of mind that we are safe and have the right to a fair trial and justice. Hobbes believed that even because we live under government, it does not mean our liberties are removed from us6, it simply changes the way we are able to use them, and for the better in most cases.
However, there are some things in which I believe the law must be. For one, law has to be fair, and equal to all. Everyone deserves a fair trial in order to prove innocence or guilt. Law should protect the innocent and provide them with safety from the evil and immoral. Most importantly, in order to mirror society, law must change with it and support the majority of people who need it. Finally, law needs a good government system which can enforce these rules.
Governments should make laws based on, as said before, what the majority requires, and should include everyone within them. People would not function well without leaders and government. Leaders shape the world and constantly try to change laws such as Trudeau did with homosexuality. It is in my opinion that in an anarchical world, people such as these would be persecuted even more so because there would be even less laws to protect them from hatred. Many people argue nature versus nurture, but can it not be both? For the world of law to work, I believe that it is both.
However, there is no question in my mind that positive law is a vital necessity to making the world turn. Some people are good, and some are bad, but everyone is bound to make a mistake at some point or the other, and this makes it important for everyone to be treated equally under the same set of guidelines; positive law ensures this.
- Alex Tuckness, Lockes Political Philosophy retrieved from http://plato. stanford. edu/entries/locke-political/ (Stanford Encyclopedia of Law: 2010)
- Garath Williams, Thomas Hobbes: Moral and Political Philosophy retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2765815/