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What’s the Difference between Legal Positivism and Natural Law Theory?

February 27, 2013

We’ve been talking about legal positivism and natural law theory for quite some time now, but I’ve been pretty cautious about throwing around definitions of the terms until we’d got some firsthand familiarity with them. Time at last to throw caution to the wind.

We’re now at a point where the distinction between legal positivism and natural law theory can be made with a fair amount of clarity and with enough content to be something other than an empty formula. One way to put the matter, as Hart suggests, is that natural law theorists believe that there is a necessary (or conceptual) connection between morality and law, while legal positivists do not (Hart’s Concept, 155). That’s not bad, but it leaves too much to the imagination. What is the nature of this necessary connection with holds (or does not hold) between law and morality? Here’s a better go at it:

  • Natural Law Theory (NLT): It is not possible that L is a law if L is deeply flawed from a moral perspective (Hart’s Concept, 156).
  • Legal Positivism (LP): It is possible that L is a law (even) if L is deeply flawed from a moral perspective.

Obviously, the locution “from a moral perspective” needs to be filled out by any credible theory of law. But to the extent that we’re just drawing a line between families of opposed camps, talking in this way is probably unobjectionable. However, one worry is that this way of drawing the distinction probably makes Hobbes (or our simplified version of him, Hobbes Jr) into a natural law theorist. After all, Aquinas (or, again, Aquinas Jr) and Hobbes agree that there is a necessary connection between law and morality in roughly the manner characterized above. But Aquinas thinks that nothing is a law if it is unjust because law presupposes morality, while Hobbes thinks that nothing is a law if it is unjust because morality presupposes law. To put it another way, Aquinas holds that something might fail to be a law in virtue of the fact that it is immoral, but Hobbes thinks that something might fail to be immoral in virtue of the fact that it is not illegal. (One more time: these are simplified versions of the work of these philosophers, not deep exegetical versions.) We might tweak our version of natural law theory just a bit as follows:

  • Natural Law Theory (NLT*): It is not possible that L is a law, if L is deeply flawed from a moral perspective because L is deeply flawed from a moral perspective.

If we then keep the definition of legal positivism as it is, we avoid the awkwardness of making him either a natural law theorist or a legal positivist while allowing these theories distinct spaces of their own. We can say that what unites legal philosophers as diverse as Jeremy Bentham, John Austin, Herbert Hart, Hans Kelsen, and Joseph Raz is their acceptance of LP, while what unites Thomas Aquinas, Lon Fuller, Ronald Dworkin, and John Finnis is their willingness to sign on to NLT*. If that’s a bit of an oversimplification, it’s a useful one. We’re also in a position to distinguish soft legal positivism from hard legal positivism.

  • Soft Legal Positivism (SLP): Legal positivism is correct, but it is possible for a moral principle to be part of law.
  • Hard Legal Positivism (HLP): Legal positivism is correct, and it is not possible for a moral principle to be part of law.

For the purposes of record keeping, we can call Hart a soft legal positivist and Raz a hard legal positivist.

You can – and are encouraged to – seek more nuanced accounts of legal positivism and natural law theory at the Stanford Encyclopedia of Philosophy. Also very useful are The Oxford Handbook of Jurisprudence and Philosophy of Law, The Blackwell Guide to the Philosophy of Law and Legal Theory, and A Companion to Philosophy of Law and Legal Theory.

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