The Difference Between Natural Law and Legal Positivism

THE DIFFERENCE BETWEEN NATURAL LAW AND LEGAL POSITIVISM This essay is going to discuss and analyse the differences between two basic principles- natural law and legal positivism. According to Hume, there are two realms of human enquiry , one in the field of facts which is concerned with what ‘ is ‘ actually the case and the other in the field of ‘ought’ that is, what ought to be the case1.Those who believe in the principle of natural law are known as naturalists while those who believe in the principle of legal positivism or ‘positive law’ are known as positivists. This is a brief overview of the two principles of natural law and legal positivism. Natural Law Natural Law started with the ancient Greeks and suggested that there was a higher power in control of human existence. Natural law deals with the combination of law and morals and is sourced from religion, culture and reason. It is the means by which human beings can rationally guide themsel ves to their good and it is based on the structure of reality itself.All human beings possess a basic knowledge of the principles of natural law. Naturalists believe ‘ an unjust law is not a law’. Doherty said ‘One of the classical theories of natural law is that there are certain principles of human conduct, awaiting discovery by human reason, with which man-made laws must conform if it is to be valid’2 Natural law is what ‘ought’ to be. Some natural law thinkers were Hobbes, Locke, Finnis, Fuller and Aquinas. Aquinas set the pattern of modern natural law thinking. He divided law into four categories-eternal law, divine law, natural law and human law.The first precept of the natural law, according to Aquinas, is the imperative to do good and avoid evil. ‘Aquinas believed that human laws that do not correspond to the natural law are corruptions of law. These are human laws that lack the character of law that binds moral conscience’ 3 The term ‘natural law’is ambiguous in that it refers to a type of moral theory as well as a legal theory. 1 2 Dennis Lloyd The Idea Of Law(1964)p. 80 Michael Doherty Jurispudence:The Philosophy Of Law(Third Edition)(2004)p. 132 3 Ibid p. 151 UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9BLegal Positivism Legal positivism has to do with the seperation of laws and morals. ‘Legal positivism is a philosophy of law that emphasizes the conventional nature of law-that it is socially constructed. According to legal positivism, ‘law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law’4 Some positivists were Bentham, Austin, Hart and Kelsen and they all had different theories. Bentham- utility, Austin- commands, Hart- rules, Kelsen- norms. Legal positivism is of the view that morality is irrelevant to the identification of what is valid law.Bentham referred to natural law is ‘nonsense on stilts’. He said the test of good or evil in an act is its utility and that the ‘greatest happiness of the greatest number’ is the social test of what is moral conduct. Austin’s particular theory of law is often called the ‘command theory’ The three basic points of Austin’s theory were- the law is a command issued by the uncommanded commander , the commands are backed by threats and a sovereign is one who is habitually obeyed. Kelsen was of the view that the only law is positive law, that which is the product of the will of the people, there are no natural laws therefore.Positivists believe that law is linked with the sovereignty. ‘According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power –they are obeyed by all or most others but do not themselves simi larly obey anyone else’5 Positivists say ‘ought’ is important but should be seperate and one should avoid trying to derive an ought from an is. Natural lawyers believe that law is necessarily connected to morality, whereas legal positivists deny that. This is the major difference between positivist and natural law thinkers.Natural law is the combination of laws and morals while legal positivism is the seperation of laws and morals. Legal positivism declares that morality is irrelevant to the identification of what is valid law and that the criteria for the validity of a legal rule or law in a society is that it has the warrant of the sovereign and will be enforced by the sovereign and its agents. Raz, a positivist, stated that ‘the validity of a law can never depend on its morality’ 6 Positive law or positivism is 4 5 www. iep. utm. edu/legalpos/ [April 17 2001][accessed 4th November 2012] Plato. tandford. edu/entries/legal-positivism/ [2003][accesse d 4th November 2012] 6 Joseph Raz The Authority Of Law: Essays On Law And Morality(1979)p. 47 UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9B different from natural law because ‘ it calls for a certain measure of regularity of observance for without this feature, it would hardly be entitled to rank as law at all. A natural law on the other hand may stll be held to be valid even if it is never or scarcely even observed. 7 Legal positivism will only work in a community where it is widely accepted. Hart suggested that the legal system is a ‘closed’ logical system where decisions may be deduced by logic. For natural lawyers- laws will be morally correct. For positivists- the moral aspect is a social standard for people to aspire to. Another major difference between the principle of natural law and the principle of legal positivism is that natural law is not constructed by human beings while legal p ositivism is constructed by humanbeings through the statedraws from lawmakers and the process of lawmaking. There are two aspects, therefore, that emphasise the contrast between positivism in its caricatured form and natural law theores. First,law is exclusively the premise of the legal caste(incluing legilsators) This deprives law of any spurious claims of intrinsic morality and ensures the individual’s right to his own conscience, while reserving the legal system’s right to punish him for transgressing. Secondly, it allows for precise statements about the nature of valid law which approximate to the lawyers’ experience. 8 Natural law is unwritten while legal positivism consists of the written rules and regulations by the government- codes, acts. Another distinction is that natural law is ‘the order of conviviality(literally, the order of living together)’9 – the conditions of conviviality are universal. Legal positivism on the other hand is specific to a particular area. ‘While positivism states that the concept of law is simply what the legal system in a given society recognizes as law, naturalisation considers law to be an ideal, commonly shared by human societies’10Natural law follows a test.If it fails the moral test, then it is not good law. Positivism doesn’t follow that test. Some laws may lack in morals but still be ‘good’ law. Despite the distinctions between natural law and legal positivism, there is a necessary connection between the two principles. Natural law flows into legal 7 8 Dennis Lloyd The Idea of Law(1964)p. 97 Michael Doherty Jurispudence: The Philosophy Of Law(Third Edition)(2003)p. 155 9 http://users. ugent. e/frvandun/Texts [no date][accessed 4th November 2012] 10 Michael Doherty Jurispudence: The Philosophy Of Law(Third Edition)(2003)p. 155 UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9B po sitivism indirectly because it is impossible to have a legal system without fidelity to the rule of law and formal justice. ‘The connection between law and critical morality is necessary in that it is not contingent. It applies to every law and every legal system.The proposed interpretation of every law in every legal system can easily be challenged on the ground that it is not morally defensible, whether the challenge succeeds or fails in a particular instance’11Any positive law that conflicts with natural law is not really law at all. As a result of this, there is no moral or legal obligation to obey it. People will not follow a law that they think is morally repulsive. A rule is legally valid if there’s a moral right to enforce it. If people do not have morals or reason, it will be factually hard to have a legal system.Radbruch said ‘a law could not be legally valid until it had passed the tests contained in the formal criteria of legal validity of the s ystem and did not contravene basic principles of morality’12 Natural law and legal positivism are undoubtedly interwined and inter-related. ‘The values of fairness, equity, justice, honesty, humanity, dignity, prudence, abstention from violence and a host of other values that conduce to cooperation and coexistence play a prominent role in the law even when they are not incorporated in any formal source of law. 13 In conclusion,’in order to know what your legal rights are, you need to look at what laws your society has. In order to know what your moral rights are, you need to figure out what is the true morality. ’ 14 Adaeze Aseme. 11 12 Users. ox. ac. uk/~all. s0079/positivism2. pdf [no date][accessed 4th November 2012] Michael Doherty Jurispudence: The Philosophy Of Law(Third Edition)(2003)p. 157 13 Ibid. P. 39 14 Michael Doherty Jurispudence: The Philosophy Of Law(Third Edition)(2004)p. 39 UP:05/11/2012-03:15:35 WM:05/11/2012-03:15:38 M:IA120-3-FY A:12a1 R:1204531 C:78D1638A2748CDB50B5907EB2217613C84694D9BBIBLIOGRAPHY Books Lloyd, Dennis, The Idea Of Law(1967) Raz, Joseph, The Authority Of Law: Essays on Law And Morality(1979) Doherty, Michael, Jurispudence: The Philosophy Of Law(Third Edition)(2003,2004) Internet Sources www. iep. utm. edu/legalpos/ [April 17 2001][accessed 4th November 2012] Plato. standford. edu/entries/legal-positivism/ [2003][accessed 4th November 2012] http://users. ugent. be/frvandun/Texts [no date][accessed 4th November 2012] Users. ox. ac. uk/~all. s0079/positivism2. pdf [no date][accessed 4th November 2012]

Database Management System Essay Example | Topics and Well Written Essays - 1500 words - 2

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Co-operative entreprises Essay Example | Topics and Well Written Essays - 2500 words

Co-operative entreprises - Essay Example Different Expectations One of the common and the most disastrous problems of working in a co-operative is that different members may come together in the team having different expectations. I will present here the simple example of doing an assignment together. Some group members may be satisfied with nothing but an A whereas others may settle with just a passing grade. Different expectations can lead to different attitude, work ethics and priorities (Barton, 2011). Thus it is very important in a co-operative to have a common goal and shared values. Each member should identify with that goal. It may even be necessary to scale down the expectations of some of the members and scale up the expectations of others in order to arrive at a goal which is expectable to all the members. Lack of Communication A co-operative is formed when one member cannot fulfil all the roles himself. Thus a co-operative entails division of work. Some members may be made in charge of marketing, others will hav e to handle the finance and some others are tasked to handle operations of the co-operative. The biggest challenge here is the lack of communication among members responsible for different tasks. A marketing guy may make a very ambitious sales plan but may not be aware that there are no finances to support his plan. Lack of communication causes numerous problems but is relatively easy to handle. The problem can be handled b having regular meetings with different group members (Nilsson & Ollila, 2013). These meetings might seem like a drag but they help everyone to come up to speed and also remain misunderstanding that may crop up. Regular communications among different teams is the most important means of solving problems in a co-operative working environment and ensure positive interdependence among the team members. Ego/Personality clashes In my personal experience of working on a co-operative project ego clash is the biggest challenge which is very difficult to solve. The operati onal and logistic problems can be solved easily if all team members put their minds to it but ego clashes not only demoralize other team members but may even ruin the whole project (Cooperatives UK, 1965). These clashes may not be even related to the project that we are undertaking but members may have brought them in to the team from their past history. The best way to avoid these clashes is to ensure that each member of the co-operative is allowed to speak his or her mind. No one should be given more weight age as compared to others. However this does not usually happens and team members end up taking sides which is disastrous for the co-operative. I have personally seen that secret voting on topics of contention is a good way to prevent these clashes and help the group move forward. Cultural Differences Each one of us has a different way of working even if we have the same goals. Some members of the group like to work alone, some like to work under pressure whereas others like to plan ahead. I call these problems as cultural differences among the members of the team. These differences

Case study analysis Nike sweatshops and business ehtics

Analysis Nike sweatshops and business ehtics - Case Study Example The sells a number of their products per year but the company lacks a production unit and thus contracts other companies to manufacture for them all around the world. It is estimated that over 900,000 million people are employed in these different companies around the world to produce Nike based products alone. A large number of these companies are based in Asian countries like Philippines, Taiwan, Vietnam, Thailand, Pakistan and Indonesia where critics have accused Nike to offer poor working condition for the workers as opposed to the United States’ labor laws. The company has been accused on several occasions for exploiting the sweatshop labors upon which its operations are based to increase their profitability while exploiting the locals and rewarding them poorly. Nike had total revenue of $16 billion in 2007, a slight improvement from what the company posted in the previous years. Introduction This paper provides a detailed case study of Nike sweat shops as they are curren tly operated and managed across the globe. As part of the analysis, the business model adopted by Nike shall be analyzed in this paper, providing a comparison with other business models that do exist. The core mission, values and visions of the company will also be discussed to ascertain their relevance in the progress of the company. This paper will adopt the five porter analysis technique to describe the strategic plans and approaches adopted by Nike sweatshops. Porter five force analyses is a framework developed to enable consultants conduct critical industry analysis and business strategy development. SWOT analysis of the company will also be conducted to help form a clear basis upon which their success and/or failure will be weighed. Ethical issues in Nike sweatshops have been a major topic both in the United States and in other countries where the company’s goods are manufactured. This case study will also seek to provide a detailed analysis of the ethical conduct and m isconduct of Nike sweatshop to ascertain the relevance of the claims. Finally, recommendations based on the results obtained from the analysis will be provided emphasizing on the legal requirements that guide such recommendations. Existing business model Business model provides an in-depth analysis of the practices of the business that seeks to create, deliver and capture value for the products being handled. In this section, the core operational aspects of the business, strategies employed organizational culture and structure and trading policies will be evaluated. The business model adopted by any organization contributed to a larger percentage its ability to succeed and deliver value to its consumers. Nike has a value proposition that translates into nothing is impossible if you put the right effort and practice into whatever you want to achieve. This has been a marketing strategy adopted by the company for long to enable it retain its sport consumers who require motivation in th eir daily endeavors. The creation of innovation and inspiration to all athletes in the world the company’s core target and this has enabled Nike to maintain its traditional customers in the sporting fraternity (Drago 117). Nike has for long adopted the franchising business model to enable it produce large volumes of products that can meet the demands of its large consumers spread across the world. Franchising is defined as a practice of using other

Italian Unification between 1815-1848 Essay Example for Free

Italian Unification between 1815-1848 Essay To what extent is it true to say that there was absolutely no movement or prospect of Italian Unification between 1815-1848? Between the years 1818 and 1848 there were many revolutions in Italy starting in the year 1821. The statement above states ‘absolutely no movement or prospect,’ therefore I strongly disagree with this due to the fact that there must have been some movement to achieve what Italy were finally able to. The following essay will give different points on the statement. In my opinion, I do not agree with the statement, one main reason being there were enough people in Italy that wanted it to be unified and that fought for what they believed in. For example the secret societies. During the times Italy was under the ruling of Metternich, many secret societies were formed, with passwords, mutual protection and sometimes even semi-religious rituals. The Carbonari, the most well known society and so consequently the most important. There were approximately 60,000 members involved, and it was particularly active in South Italy, especially in Naples. There aims were relatively mild, in Piedmont and Naples for example they hoped to establish a constitutional monarchy. It is already possible to see that there was some movement in Italy from secret societies that were hoping for Italian Unification. Another reason I disagree with the statement is due to Italy being under the ruling of Metternich. Although it was difficult living under the Austrians, and they were clearly putting an obstacle in the way of unification, I believe that it was actually a large contribution to the happening of unification. For example, due to Metternich trying to belittle the country by separating it into small constituencies, it made the Italian public want to fight back, and therefore as a consequence start revolutions. Three major revolutions occurred in Italy in the years, 1820-21, 1831-32, 1848-49. I believe this proves that things were being done to help unification rather than there being ‘absolutely no movement’. Additionally there is Giuseppe Mazzini, who is said to be a key figure in the history of Italian Unification. Mazzini was born in 1805, he had one overriding aim being ‘the brotherhood of people’. He believed in the equality of human beings and of races. In 1831, Mazzini founded ‘Young Italy’, this being Italy’s first real political party. Mazzini described the party as, ‘a brotherhood of Italians who believe in a law offreemen and equals.’ Those in the party had to swear to commit themselves to make Italy ‘one free, independent, republican nation.’ Mazzini’s ideas were incredibly radical for that period of time, for example, his ideal was that the people should rise up agains their oppressors, there should be unification ‘from below.’ Eventually there was unification however it came more from above. Yet Mazzini proves once again that there was movement and prospect towards Italian unification, Young Italy being another example. Although Mazzini may not have been successful at that precise moment, we can now see that unification was actually reached. Linking to my previous point, it has been proven that Mazzini was not only famous for his radical beliefs but also for converting people to the cause. This point firstly proves that some movement was being made in the form of attracting people to the challenge that was Italian unification, but furthermore, proves further movement in the fact that there must have been an incredible number of supporters that were in favour of unification, and therefore plans must have been made to try and succeed. Finally, by seeing that Italian Unification was attained eventually, we can ultimately say that there must have been enough movement and enough prospect for the aim to be successful. For these reasons, i disagree with the statement ‘To what extent is it true to say that there was absolutely no movement or prospect of Italian Unification between 1815-1848?’ On the other hand, there are many events from this period of time that may agree with the statement previously specified. For example, after the French revolution, Metternich reinstated the previous monarchs of each constituency. Most of the monarchs were reactionary and therefore there was a large obstacle blocking the path to unification. Being such a large predicament, one can assume that there was ‘absolutely no movement.’ In addition, the lack of progress that went into uniting the country through language may have been seen as lacking and therefore lead ones opinions to believe once again no progress was being made. Furthermore, even with the countless revolutions that were attempted not one succeeded permanently. So, although this particular example goes against there being absolutely no movement, due to the fact there was clearly movement in the form of revolutions, it does agree however with there being no prospect of unification, seeing as every individual revolution from each specific country failed inevitably. This was in consequence of the Austrians suppressing the revolutions and then re inviting the previous leaders to come and transform the constituence to the way it had previously been. Following this, it is now possible to appreciate the separation between the North and South of Italy. The Northern half containing the wealthier half of the population, whilst the Southern half being populated with the poorer families. Due to this large partition, it is hard to see any prospect in Italian Unification and therefore one can easily agree with the statement above. In relation to the previous point is the division of the Apennine Mountains. In those times, the Apennine Mountains were practically the back bone of Italy, until it was partitioned into North-East and South-West by Metternich. It is understood that without a back bone, a body would be unable to stand, hence the fact that without the Apennine Mountains it would be incredibly challenging for the population of Italy to achieve the prospect of unification. Overall, one can see that there are many justifications for both sides of this argument. Although from this essay it seems the statement is in fact true, I strongly disagree. Understanding that there may be proof to support the statement, at the end of the day Italian Unification was achieved, and therefore it is impossible to say that there was ‘absolutely no movement’ because the aim was fulfilled and therefore some movement must have taken place. In conclusion, I disagree with the statement ‘to what extent is it true to say that there was absolutely no movement or prospect of Italian Unification between 1815-1848’ because this declaration clearly states that there was ‘absolutely no movement’ towards Italian Unification between those years, yet unification was completed, thus whether there was a lot of movement, or in some case a little, there was undoubtedly more than none, and for this reason I forcefully disagree with the statement.