INTRODUCTION

Natural law is a philosophical theory that posits that there are inherent moral
principles and standards that govern human behavior, which are
universally applicable and can be discovered through reason 1. According to
natural law theory, these principles serve as a basis for evaluating the legitimacy
of human-made laws. It asserts that law should reflect moral truths and that
unjust law, those that contradict natural law, lack true validity. Natural law is
often associated with ideas of justice, ethics, and human rights.

Legal positivism insist on drawing a sharp distinction between the law that” is’
and the law ought to. It is different to the natural law view denies the possibility
of arigid separation of the law is and law ought to be and tolerates confussion
between them in legal discussion.
The positivist movement started to be at the beginning of 18 century it
represented a reaction against the prior method of thinking which turned away
from realities of actual law in order to discover in nature or reason the principle
of universal validity. The following are the prominent jurists of legal positivism:

LEGAL POSITIVISM OF JOHN AUSTIN

Austin is chiefly associated with analytical “positivism. ’By positive law, he

meant the law set by men to men, as distinguished from the laws of
God2. To him, positive laws are the subject matter of jurisprudence. The
science of jurisprudence according to him is concerned is concerned with
positive laws or with laws strictly so called. A prominent figure in legal
philosophy is best known for his contributions to the theory of legal positivism
and his command theory of law. His distinction between "what the law is" and
"what the law ought to be" is central to his legal philosophy. The Austin theory is
made up by the following tenets:

Law as Command: According to Austin, a law is essentially a command from

the sovereign to the subjects3. This command must be general and applicable to
the public, distinguishing laws from mere orders or instructions that do not
carry the same legal weight.

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 Commands are characterized by their authoritative nature and the
expectation of obedience from those to whom they are directed. He insists that
laws are commands that obligate individuals to act in certain ways. These
commands are characterized by the presence of a sanction or consequence for
non-compliance. In other words, a law is effective only if it is backed by the
threat of punishment for those who do not follow it.
Sovereignty: The sovereign is defined by Austin as a person or body that the
majority of the population habitually obeys, without being in the habit of obeying
anyone else4. This means that the authority of the sovereign is recognized and
accepted by the people, which is essential for the enforcement of laws. Austin's
view of sovereignty is crucial because it establishes the source of legal authority.
The commands of the sovereign are what constitute law, and without a
recognized sovereign, there can be no legal system.
Sanction: Sanctions are the means by which compliance with the law is
enforced. Austin argues that the threat of punishment or coercion is what
compels individuals to obey the commands of the sovereign. This aspect of his
theory emphasizes the authoritative and sometimes coercive nature of law.

LEGAL POSITIVISM BY HANS KELSEN

Kelsen Pure theory is a theory which raises action against natural law. It
maintains that laws are norms. Therefore, a society’s legal system is made
up of its norms, and each legal norm derives its validity from other legal
norms5. Contributions to the understanding of law revolve around his concept of
the "Pure Theory of Law," which seeks to clarify what law is and what it ought to
be, distinct from moral or political considerations. Here are the key aspects of
Kelsen's theory:
Law as a System of Norms
Separation of Law and Morality: Kelsen argued that law should be understood as
a system of norms that are distinct from moral or ethical considerations 6. He
believed that traditional legal philosophies were often tainted by political
ideologies and moral judgments, which he TFVsought to eliminate in his theory.
Normativity of Law:

4
Ibid.
5
Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, p. xiii;
Kelsen, Hans, On the Pure Theory of Law, Israel Law Review Vol. 1 1966, p. 5.

6
Ibid.
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Kelsen emphasized that legal norms are prescriptive statements that dictate how
individuals ought to behave. This normative aspect is crucial because it
distinguishes legal norms from mere factual statements.
Concept of the Basic Norm:
Central to Kelsen's theory is the idea of the "basic norm" (Grundnorm), which
serves as the foundation for the validity of all other legal norms within a legal
system7. The basic norm is not derived from any higher norm but is presupposed
as a necessary condition for the existence of law.
Chain of Validity:
Kelsen posited that legal norms derive their validity from higher norms in a
hierarchical structure, ultimately leading to the basic norm. This chain of validity
illustrates how laws are interconnected and how their authority is established 8.
The "Is" and "Ought" Distinction
Hume's Influence: Kelsen was heavily influenced by David Hume's assertion that
one cannot derive an "ought" from an "is." He maintained that while legal norms
express what ought to be done, they cannot be logically deduced from factual
premises alone. Therefore, the presupposition of the basic norm is essential to
bridge this gap.
Presupposition of the Basic Norm: Kelsen argued that to understand the
normativity of law, one must presuppose the basic norm. This presupposition is
not a moral commitment but an intellectual tool necessary for interpreting legal
norms as valid.

LEGAL POSITIVISM OF JEREMY BENTHAM (UTILITARIAN)

Bentham is often regarded as the genuine founder of legal positivism. Jeremy

Bentham's views on law revolve around the distinction between "law as it is" and
"law as it ought to be. 9 His legal philosophy is foundational to the development of
utilitarianism and legal positivism. The Bentham’s theory is made up by the
following tenets:

Law as It Is
Descriptive Aspect: Bentham emphasized the importance of understanding
law as it exists in practice. This involves analyzing legal systems, statutes, and
the functioning of legal institutions without moral or ethical considerations 10. He

7
Kelsen, Hans, the Function of the Pure Theory of Law, Law: A Century of Progress 1835
to 1935. Vol. 2 1937, p. 231.
8
Ibid.
9
Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press 2009) 30.
10
Ibid.
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believed that jurisprudence should focus on the actual workings of law
rather than idealized notions of justice or morality.

Legal Positivism: Bentham is often associated with legal positivism, which

asserts that law is a set of rules created by human beings and is not
inherently linked to moral values. He argued that laws are commands from a
sovereign authority, and their validity is determined by their enactment
rather than their moral content11.
Law as It Ought to Be

Utilitarian Principle: Bentham's concept of "law as it ought to be" is grounded

in the principle of utility, which posits that the best laws are those that
promote the greatest happiness for the greatest number. He believed
that laws should be evaluated based on their consequences and their ability to
enhance overall societal welfare.

Reform and Improvement: Bentham was a strong advocate for legal reform.
He argued that existing laws should be scrutinized and improved to better serve
the public good. His vision of law as it ought to be involves a continuous
process of evaluation and reform to align legal systems with utilitarian principles.
The debate between legal positivism and natural law revolves around the
fundamental question of what law is and what it ought to be. Each perspective
offers distinct views on the relationship between law and morality.

CONCEPT OF NATURAL LAW

Natural law is a philosophical theory that posits that there are inherent moral
principles and standards that govern human behavior, which are universally
applicable and can be discovered through reason 12. It asserts that law should
reflect moral truths and that unjust law, those that contradict natural law, lack
true validity. Natural law theorists argue that laws must reflect moral truths and
principles. An unjust law, according to this view, is not a true law at all. Thinkers
like St. Thomas Aquinas and Martin Luther King Jr. have emphasized that laws
should promote human dignity and justice. For instance, King argued that an
unjust law is one that is out of harmony with moral law. Natural law is often
associated with ideas of justice, ethics, and human rights. The following a re the
prominent jurists of Natural Law:
11
1Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008, Read Books) 79.
12
Coleman, J. and Shapiro, S. (eds) Oxford Handbook of Jurisprudence and the Philosophy of Law. (Oxford:
Oxford University Press, 2002).
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NATURAL LAW BY H.L.A. HART
H.L.A. Hart is the one who strengths of his natural law theory is its respect for the
insights of positivism. He ultimately concludes, however, that positivism is at
best a partial, and at worst, a fundamentally flawed, theory of law 13. He famously
stated that legal systems can be understood without reference to moral values.
Laws are valid based on their adherence to established rules and procedures, not
their moral standing, in his work, The Concept of Law, Hart distinguishes
between "primary rules" (laws that impose duties) and "secondary rules" (rules
about how laws are created, interpreted, and enforced). He states, "The law is a
system of rules." This encapsulates the positivist view that law exists
independently of moral considerations.

Prof Hart make a distinction between basic or primary rule and secondary rules,
under primary rule human being are required to do or abstain from certain
actions whether they wish or not, secondary rules are in a sense parasitic upon
or secondary to primary right, they provide that human being may by doing or
saying certain thing introduce new rule of the primary type, extinguish or modify
old rules or in various ways determine their incidence or control their
operations, primary rule impose duties, secondary rule confer power public or
private. Primary rules concern actions involving physical movement or changes,
secondary rule provide for operation which lead not merely to physical
movement or change but to the creation or variation of duties or obligation union
of primary and secondary rules result in law. 14

NATURAL LAW BY FINNIS’S ETHICAL THEORY

Two major arguments against natural law theory must be addressed by any
modern natural law theorist. The first is moral scepticism. ‘Realists’ about
morality believe that moral values and principles exist, and ‘cognitivists’ about
morality believe that humans can come to know what these moral values and
principles are, so that statements about what is morally right can be judged to
be true or false15. Moral sceptics of various kinds deny either or both of these
views.
Emotivists of various kinds, for example, believe that what we call our moral
beliefs are ultimately just expressions of our emotional attitudes. As an example

13
Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford, Clarendon Press, 1983) Chapter 2: ‘Positivism
and the separation of law and morals’, and Chapter 16: ‘Lon L. Fuller: The morality of law’
14
DR V.D Mahajan Jurisprudence and Legal Theory fifth edition, 2013 at pg. 460.
15
George, R. (ed.) Natural Law Theory: Contemporary essays. (Oxford: Clarendon Press,
1992) (which includes M. Moore’s, ‘Law as a functional kind’, at pp. 188–242).
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of a modern positivist who clearly doubted that there were universally valid,
objective moral norms that humans could know the truth of it.

Moral scepticism has itself been attacked as incoherent or nonsensical, but the
debate remains a live one. Clearly, if moral scepticism is right, then natural law
theory is hopeless, for there would be no objective moral standards that could
connect with the law. You should remain aware of this issue, in part because it is
a necessary backdrop for understanding Finnis’s moral theory, but more
generally to understand the broader kind of philosophical challenge that a
natural law theory might face 16. It is well beyond the scope of this course to
study in detail the arguments of moral sceptics and their respondents.
The second argument concerns the way in which we might know what morality
requires. You may have heard of the fact/value distinction, which is akin to the
distinction between description and prescription, or the factual and the
normative. The fact/value distinction is the distinction between statements which
describe some aspect of reality, e.g. ‘Elizabeth II is Queen of England’, and
statements which evaluate some aspect of reality, or prescribe some behavior,
e.g. ‘Killing the innocent is wrong’ or ‘Do unto others as you would have them do
unto you’. The leading philosopher of the Scottish Enlightenment, David Hume
(1711– 1776), famously pointed out that one cannot validly infer or derive
evaluative propositions from factual ones; the point is typically put thus, ‘One
cannot derive an “ought” from an “is”
KEY DIFFERENCES BETWEEN NATURAL LAW AND LEGAL
POSITIVISM
The differences between positivism and naturalism significantly affect
contemporary discussions in various fields, particularly in law, ethics, and social
sciences. Here’s a breakdown of how these two philosophical approaches
contrast and their implications in modern contexts:
Nature of Law: Positivism: Positivism asserts that law is a social construct
created by human institutions. It emphasizes that laws are valid if they are
enacted according to established procedures, regardless of their moral content.
This perspective allows for the existence of unjust laws, as long as they follow
the legal framework. Naturalism: In contrast, naturalism (or natural law theory)
posits that law is inherently linked to morality. It argues that laws must align with
universal moral principles to be considered valid. Therefore, a law that
contradicts these moral standards is deemed illegitimate

16
Finnis, J. Natural Law and Natural Rights. (Oxford: Clarendon Press, 1980).
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Source of Legal Authority: Positivism: Legal authority is derived from the
commands of a sovereign or the established legal system. The focus is on the
procedural aspects of law rather than its ethical implications. Naturalism: Legal
authority is seen as stemming from moral truths that exist independently of
human enactment. Naturalists believe that human laws should reflect these
moral truths to be valid.

Role of Morality: Positivism: This approach maintains a clear separation

between law and morality. Legal positivists argue that moral considerations
should not influence the validity of laws, which can lead to the acceptance of
laws that may be morally questionable Naturalism: Naturalists argue that law
and morality are intertwined. They contend that laws must be evaluated based
on their adherence to moral principles, which can serve as a basis for critiquing
unjust laws.

Contemporary Implications Legal Systems: The positivist approach can lead

to a legal system that upholds laws regardless of their ethical implications,
potentially allowing for oppressive or discriminatory laws to persist. In contrast,
naturalism encourages a legal framework that prioritizes justice and human
rights, advocating for reforms when laws are found to be unjust.

Human Rights Discourse: Naturalism has significantly influenced

contemporary human rights discussions, as it provides a moral foundation for
arguing against laws that violate fundamental human rights. This perspective is
essential in advocating for social justice and equality.

Legal Interpretation: In contemporary legal interpretation, positivism may lead

to a more rigid application of laws, while naturalism allows for a more flexible
approach that considers the broader moral context of legal decisions. This can
affect judicial outcomes and the development of legal precedents. In summary,
the differences between positivism and naturalism shape contemporary legal
and ethical discussions by influencing how laws are created, interpreted, and
critiqued. The ongoing debate between these two philosophies continues to
impact various fields, including law, ethics, and social policy.

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CONCLUSION
The distinction between legal positivism and natural law is crucial in
understanding the nature of law and its moral dimensions. Legal positivism
emphasizes the procedural aspects of law, while natural law underscores the
importance of moral principles in determining the validity of laws. Legal
positivism and natural law often depends on the context and the values of the
individuals involved. Some may favor legal positivism for its clarity and structure,
while others may advocate for natural law due to its moral grounding, this
continues to be relevant in contemporary legal discussions, particularly in light of
historical events that demonstrate the consequences of prioritizing one
perspective over the other.

REFERENCES

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1. Coleman, J. and Shapiro, S. (eds) Oxford Handbook of Jurisprudence and
the Philosophy of Law. (Oxford: Oxford University Press, 2002).
2. Finnis, J. Natural Law and Natural Rights. (Oxford: Clarendon Press, 1980).
3. Fuller, L. L. The Morality of Law. (revised edition) (New Haven: Yale
University Press, 1969).
4. George, R. (ed.) Natural Law Theory: Contemporary essays. (Oxford:
Clarendon Press, 1992) .
5. Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford, Clarendon
Press, 1983) Chapter 2: ‘Positivism and the separation of law and morals’,
and Chapter 16: ‘Lon L. Fuller: The morality of law.
6. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008,
Read Books).
7. John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic).
8. Kelsen, Hans, General Theory of Law and State, Cambridge,
Massachusetts 1945, and Kelsen, Hans, On the Pure Theory of Law, Israel
Law Review Vol. 1 1966.
9. Kelsen, Hans, the Function of the Pure Theory of Law, Law: A Century of
Progress 1835 to 1935. Vol. 2 1937.
10.Shiner, R. Norm and Nature: Movements of legal thought. (Oxford:
Clarendon Press, 1992).
11.Suri Ratnapala, Jurisprudence (1st Edition, Cambridge University Press
2009).

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