Philosophy of law

Law and natural law

Law is a rational standard for conduct that people have strong reasons to comply with. Thomas Aquinas identified the principle of rational conduct of human beings in natural law.

Natural law system

Natural law is a legal system where norms are valid only if they are coherent with the natural law, namely, if they're just. So, in a natural law system, a rule that is not a rational standard for conduct is no law at all. According to the natural law's principle of lex sine rationem non est lex or lex iniusta non est lex, a law is valid only if it does not contradict natural law. Natural law is justice because in nature everything is just according to the idea that in nature, what happens is justice (the idea of order and rationality is closely connected to laws). So KOSMOS ↔ DIKE means that the natural world is always just because it is rational, and as Aquinas says in the Summa Theologiae, men are the mirror of natural order because they are nature.

Natural law is the voluntas of the Will of God, and this is an irrational idea of the world because you think about an irrational power which governs all of reality. The rationality is one of the characteristics of the natural law system because the only law that merits our obedience is the law that meets a certain minimum standard of reasonableness.

Connected to justice, in the natural law system, there's the principle of morality, according to which the moral standards that govern human behavior are built into nature. In order to be a law, a norm must be required by morality; morality has authority. So if morality has authority, and legal norms are necessarily moral, then law has authority too. So the foundation of the natural law system is based on the concepts of morality and justice, and if a norm is just and follows the morality of the natural system, that norm is necessarily also valid.

One of the criticisms that theorists of legal positivism system have is that the concept of morality is relativistic (changes from the community), uncertain, and abstract. This causes the law to be unclear. All human law is rooted in the natural law. This does not mean that all human laws simply reproduce the contours of natural practical rationality, but that human laws are based on the principles of the natural law system. For example, "drive no more than 65 miles per hour" is determined by the natural principle "when driving, proceed at a reasonable speed."

According to Finnis, a theorist of the "weak reading," it is a mistake to look for necessary and sufficient conditions for legality because we ought to proceed to find the central, paradigmatic case of legality. This is because the rule is grounded in a correct understanding of what reasons for action agents have. The weak reading wants to explain that many rules can be depicted, so for that reason, we have to go deeper to understand that. (Example: A cheetah that is not as fast as the others does not mean that it’s not a cheetah anymore.)

Legal positivism

In legal positivism, there have been many schools of thought that have risen and fallen in the last two centuries (it has a less extensive history than the natural law system). During this time, the first schools of law appeared: in 1753 at Oxford, then in 1817 the first American school of law at Harvard, and then in 1826 outside Oxford in the UK, at University College of London.

The main characteristic of legal positivism, differently from natural law theory, is the huge separation from the concept of morality. As Austin said, "Law is a law though we happen to dislike it." This is because the main principle of legal positivism is the separation from morality and emphasizing the objective of law into a "science"—science disinterested in how societies regulate their citizens through rules and institutions. Considered a "legal system" in a scientific way.

So, legal positivism is a theory about the nature of law, by itself characterized as a descriptive or conceptual theory. According to this theory, it is devoid of any morality, and people must just follow the norms. Norms just have to be coherent and comprehensive but not necessarily connected with morality. For this absence of morality, after World War II, legal positivism and its advocates were attacked for the role German legal positivism (Kelsen) played in the rise of the Nazis. H.L.A. Hart, defending legal positivism, argued in 1958 that the legal positivism theory is better than natural law theory in encouraging resistance to evil laws and evil regimes. That is because legal positivism knows that validity is one thing, and its merit is another. Though the natural law system encourages confusion among the population because a rule is moral just because it happens to be treated as valid.

Austin: His approach reduces law to a basic picture of a sovereign issuing a command. So, laws have to be understood just like commands of the monarchy. The focus is on the sanction, underlying the