Natural Law Vs Positivism Essay

Thirdly, whereas natural laws are eternal and constant, positive laws can be amended or rescinded.Fourthly, natural law is based on reason and human beings have the free will to choose what they feel is right or wrong.

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The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.

According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.

Customs and conventional laws were created by humans, and included such...

Customs and conventional laws were created by humans, and included such things as social customs and criminal laws and could be changed by humans.

The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H. Legal positivism's importance, however, is not confined to the philosophy of law.

It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars.

The Greeks, and many subsequent thinkers, made the point that if conventional laws were grounded in natural law then rather than being mutable and arbitrary, they would be fair and just.

One sign of a law being "natural" is that it is universal rather than limited to one specific culture.

The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.

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