The Philosophy of Law and the Modern Tradition

-By Soma Singh

Introduction

Legal positivism and natural law are the most common tools of legal scholars, they have a different stand in emulous ways about legal acumen, about the political philosophy, and the distinction between law and morality. When the voguish legal philosophers discuss or analyze on the viewpoint of distinction, they consider the nonpartisan use of the mayhem. This research analysis seeks to discuss various points on understanding the relationship between legal philosophies, natural law, and positivism, for virtue with embarking on a constructive debate.   It does dabble with the existing definitions but suggesting a critical way of thinking about these distinctions, or that reopens the old ways of two positions of theses. The question of whether the study of law should be “accustomed” may seem an old concept, whereas the right question should be “when we study law, we should study it as a dynamic profession”, Holmes (1897: 457) accurately said. According to the view, the law is part of human action, including their attitude, the approach is all part of nature. The “accustom” study of law then should not sound too argumentative.

The distinction can be presented more befittingly by considering the following:

  1. The chronicle of law is the nature of the present human practice.
  2. There can be an accustomed (naturalistic) explanation of all aspects of the law.

The different Kinds of Anti-Naturalism

Law is not just about humans with certain attitudes, actions, or approaches, it is a regulating concept and can specify what people ought to do[1]. It is correct that the contemporary legal philosophy, the renunciation of the naturalism goes further and prompts the idea of the anti-naturalistic viewpoint[2]. It is the conceivability of the mark of this sentiment that extends contemporary legal philosophy within the ambit of critical thinking or debate not just naturalistic or anti-naturalistic[3]. The most familiar way, at least until recently, to explain the divide between legal positivism and natural law theory was in terms of conditions of validity[4]. A more interesting way of understanding the debate is between two competing accounts of the normativity of law, for it is on this question that we can identify a real difference between the two views. And it is here that we can understand the sense in which legal positivists deny, and natural lawyers insist on, a connection between law and morality. The philosophers of positive law differ among themselves about the exact relation of law to justice and morality more broadly, but all of them want clearly to distinguish the law enforced by courts from the demands of justice and morality. To call the law enforced by courts positive law is to claim that it differs in content from the principles of justice and morality[5].

Conclusion

What is most deeply puzzling about the philosophy of law is that to define human law as positive can mean a minimum of two various things. In one sense, something is positive because it’s been deliberately laid down, imposed, or enacted as against what arises spontaneously by custom or nature; but in another sense, something is positive because it lacks intrinsic rational or dynamic, its content is “arbitrary,” within the sense that it might be different as against what has intrinsic rational or dynamic by its essence or nature[6].  The primary sense of positive may be a descriptive or empirical claim about the origins of law, namely that it stems from deliberate imposition; positive law is here posited or enacted law. The second sense of positive may be a normative claim about the content of a legal norm, namely, that it lacks, on various accounts, intrinsic moral necessity, moral universality, or moral force; positive law here seems arbitrary, like the English rule of driving on the left side of the road.


[1] One might attempt to distinguish between the normativity of law and therefore the normativity of other social practices and argue that while the latter are often explained naturalistically, the previous cannot. This, however, wouldn’t be an honest idea for a legal positivist. It seems to me that the sole way of reaching such a conclusion requires holding, first, that the normativity of morality can’t be explained naturalistically; and second, that the reason of law’s normativity can’t be detached from an evidence of the normativity of morality. Such a view sounds considerably like law theory.

[2] To stalemate the excellence between internists and externalists, which is different but often corresponds to the excellence drawn here between weak and powerful anti-naturalists.

[3] Hart called his book an essay of “descriptive sociology” (Hart 2012: vi);Hart also stated that the rule of recognition, perhaps his central idea and what determines what belongs to a system is an “empirical, though complex, question of fact” (Hart 2012: 292)

[4] Blackstone’s Commentaries, volume. I, intro., sec. 2. Dublin: John Exshaw et al., 1773.

[5] The Digest of Justinian, Latin text edited by Theodor Mommsen and Paul Krueger, volume. I (Philadelphia: University of Pennsylvania Press, 1985).

[6] Blackstone [5th edition, 1773], intro., volume. I, section 3.10 and section 2.