Critically evaluate the main principles of legal positivism and natural law.

Essay by TEAPSUniversity, Bachelor'sA-, February 2004

download word file, 14 pages 3.0

Downloaded 512 times

The history of "Natural Law" is extensive. Classical Greek Naturalism was the major doctrine until Christian Theologian Doctrine replaced it. As societies have moved away from the church "Natural Law" has been to some extent superseded by Positivism. We have been asked to critically evaluate these two schools of Jurisprudence.

Greek Naturalism

The classical Greek philosophers believed that natural law was a moral order, which was superior to human law and one that knows no bounds either in space or time. It decreed that people should be communal and that man-made regulations for communities were inferior to nature's laws.

Aristotle (384 -322 BC) believed that humans were inherently good and teleological, designed by nature with specific goals in mind. Anything, which interfered with this, should be considered to be bad. He spoke about the relationship between fact and value, what is and what ought to be. Cicero in the first century BC perpetuated these views


Christian Theologians such as Thomas Aquinas (1225-1274) believed that God lay down the rules for society and that these were superior to temporal law.

Man-made law should accord with God's law. He argued that there were four kinds of law: Eternal, Natural, Human and Divine Law.

Aquinas confirmed St Augustine's premise that there is no law unless it is just . If human law conflicts with natural law according to Aquinas it is not lawful and may be disobeyed.

Natural law jurists argue there is an intrinsic link between law and morality. However, positivists argue it is flawed because it is based on prejudice and value judgments. Homosexuality in some societies is considered unnatural so is immoral. Similarly it is morally wrong to kill yet in certain circumstances there are exceptions, e.g. wars. The Abortion Act 1967 is an example of a Positive Law...