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Natural Law Vs Positivist Theory Of Law

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A law’s validity is one of the most hotly debated subjects among the natural law and positivist thinkers. The natural law theorists claim that principles and morality are the basis of a valid law, whereas the positivist thinkers believe that a law is based on social facts and institutions . Within both schools of thought, each scholar has a different basis for his theory. This debate between the natural law and positivist theorists is related to the interpretation of laws. Many positivist scholars believe that interpretation of laws should be based on legal text alone, whereas other scholars view external sources as necessary tools for interpretation. This paper will discuss both of these debates regarding the validity and interpretation of …show more content…

During the process of creating a social contract, the people exchange their freedom and natural rights for a stable state, thus giving the sovereign the ability to enact laws. Many believe that the modern day executive branch fulfills the role of Locke’s sovereign, and is responsible for protecting public interests i.e. the natural rights of the people, despite the lack of specific legislation . According to Locke’s theory a law created by the sovereign is only valid if it is related to an individuals natural rights of life, freedom and property. Thus the law “you will not stand on the blood of your neighbor” is valid because it protects the natural right that an individual has to life. On the other hand Aquinas believes that the validity of a law is rooted in the divine principles that underlie the law. Natural law consist of an ethical aspect, which are the moral principles only known to God as well as a legal component which is the expression of these moral principles within the human legal system . According to Aristotle these moral principles, which exist on the eternal level of law, are the basis of the laws that are created on the human level. In the adoption case Justice Dornor asked whether a person enjoys the fruit of a forbidden act in order to illustrate the moral principles underlying our laws . Thus according to Aquinas “you will not stand on the blood of your neighbor” …show more content…

According to Austin a valid law is any law, which has been enacted by the sovereign and contains sanctions . Aharon Barak’s approach in the laor case illustrates Austin’s claims by saying that the Knesset, which is the sovereign body in Israel, has the right to enact any law it pleases with no limitations . If a person does not follow the law of “you will not stand on the blood of your neighbor”, he will be susceptible to sanctions. Thus according to Austin this law would be seen as valid because Knesset, the sovereign, created it and the law contains

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