Anno Domini, Tres Dies
What the pros, what are the problems with this duality in legal philosophy? What have been benefits, what have been the drawbacks in the past? What are the current benefits, drawbacks of the dualistic approach to legal thinking?
If Aquinas’s view is paradigmatic of the natural law position, and these two theses, that from the God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view for agnosticism is the refusal to commit either to God’s existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God’s existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.
Objectively speaking, natural law, as a body of rules of action prescribed by an authority superior to the state. These rules variously are variously derived from divine commandment; from the nature of humankind; from abstract reason; or from long experience of mankind in community. Natural law is not a harsh code thrust upon other people: rather, it is an ethical knowledge, innate perhaps, but made more clearly known to us through the operation of right reason. However, what is regarded as rightful by one group of people within a community, can be regarded as wrongful by another group. Human efforts are often aimed with the best intentions, in the wrong direction. Wrong in this sense: against human nature, for nature cannot be neglected without harming the human race. As a society we have to determine when our ethical laws accord with nature and when they counteract nature. Yet to guide the sovereign; the chief of state; the legislator; the public prosecutor; the judge when, in effect there endures the natural law.
Here we turn to an historical example and to the judgment of a leading American political and religious writer who endeavored to reconcile the claims of authority and the claims of freedom. The 'higher law' controversy of 1850 and to Orestes Brownson, the Catholic scholar and polemicist. In March 1850, on the floor of the United States Senate, William Henry Seward made his famous declaration that there exists 'a higher law than the Constitution.' He was referring to the Fugitive Slave Law and the Supreme Court. In January 1851, Brownson published his review-essay entitled 'The Higher Law,' in which he refuted the claim of Seward, the Abolitionists, and the Free- Soilers to transcend the Constitution by appealing to a moral 'higher law' during debate on the Fugitive Slave Bill.
Brownson agreed with Seward that there is a higher law than the Constitution. The law of God is supreme, and overrides all human enactments, and every human enactment incompatible with it is null and void from the beginning, and cannot be obeyed with a good conscience, for 'we must obey God rather than men.' But the concession of the fact of a higher law than the Constitution does not of itself justify the appeal to it against the Constitution, either by Mr. Seward or the opponents of the Fugitive Slave Law. No civil government can exist, none is conceivable even, when every individual is free to disobey its orders whenever they do not happen to square with his private convictions of what is the law of God. The Church, Brownson writes, is the authoritative interpreter of the divine law. He reminds his readers that the state is ordained of God; but the state is not the supreme and infallible organ of God's will on earth. Here we have nothing to which they can appeal from the action of government but their private interpretation of the law of God, that is to say, their own private judgment. To appeal from government to private judgment is to place private judgment above public authority, the individual above the state is incompatible with the existence of government, and therefore, since government is a divine ordinance, absolutely forbidden by the law of God, that very higher law invoked to justify resistance to civil enactments.
No man can ever be justifiable in resisting the civil law under the pretense that it is repugnant to the Divine law, when he has only his private judgment, or, what is the same thing, his private interpretation of the Sacred Scriptures, to tell him what the Divine law is on the point in question, because the principle on which he would act in doing so would be counterintuitive to the very foundation of government, and therefore in contravention of the ordinance, therefore of the law, of God. However, the natural law and the American civil law are not ordinarily at swords' points. Large elements of natural law entered into the common law of England and therefore into the common law of the United States; over the centuries; and the Roman law, so eminent in the science of jurisprudence, expresses the natural law enunciated by the Roman jurisconsults. It simply will not do to maintain that private interpretation of natural law should be the means by which conflicting claims are settled. Rather, natural law ought to help form the judgments of the persons who are lawmakers, whether emperors, kings, ecclesiastics, aristocratic republicans, or representatives of a democracy. The civil law should be shaped in conformity to the natural law which originated, in Cicero's words, 'before any written law existed or any state had been established.' It does not follow that judges should be permitted to push aside the Constitution, or statutory laws in order to substitute their private interpretations of what the law of nature declares. To give the judiciary such power would be to establish what might be called a domination of judges, supplanting the constitution.
The advantage of a positivist approach to the social sciences is that its grounds anthropology, sociology, political science and so on upon a hard and definite foundation of empirically testable data and makes theories out of this data from which absolute laws of social behavior may be attained. A chief strength then of a positivistic approach, is that it brings to the social sciences the desire to emulate the excellence of the natural sciences in respect of their rigorous experimentation, precisely stated hypotheses, definite laws, and thus prediction of behavior. By approaching its investigations thus, social scientists attain a high level of accuracy in their results and in their predictions, and thus come closer to a total description of the behavior of social phenomenon. In approaching the social sciences from a positivist position, social scientists are able to cut away from existing ‘knowledge’ many prejudices, suppositions, superstitions and other non-scientific opinions that have gathered about these social phenomena. Positivism, by declaring valid only those things which conform to its vigorous standards of investigation, strips social phenomenon of their perceived nature and reveals them as they really are.
The allegiance of the social sciences to the natural sciences, through a shared conviction in the positivist philosophy, means that the social sciences can constantly draw upon the fund of new empirical material daily unearthed by these natural sciences. If the social sciences have an exchange of knowledge between themselves and the natural sciences, then every refinement of experimental method, theory, or analysis achieved by the natural sciences may be immediately seized upon and utilized by the social sciences also. Vice-versa, this interchange allows the social sciences to more freely disseminate their discoveries within the world of the natural sciences. Moreover, by sharing a positivist philosophy with the natural sciences, the social sciences may draw from its authority in the presentation of their results to the wider scientific and academic community.
Advantage: Quantitative Approach; Positivism relies on quantitative data that positivists believe is more reliable than qualitative research. Quantitative research is more “scientific” in its methods than qualitative research and thus more trustworthy. In research, quantitative data provides objective information that researchers can use to make scientific assumptions. Positivism follows a well-defined structure during studies and discussions. Positivists believe that since there are set laws and rules followed, there will be minimum room for error. This structure also gives little room for variance and drastic variable changes, thus making the study more accurate when it comes to experiments and applications as it tries to follow specific rules using objective mathematical and scientific tools.
Disadvantage: Human Behavior Positivism believes that objective inferences and conclusions can be reached as long as the person doing the observation is objective and disregards her emotions. However, human behavior naturally comes with emotional responses. Although positivism encourages researchers to disregard human emotion and behavior, there is no guarantee that this will occur at all times during studies. The positivist does not derive conclusions from a subjective approach and does not let feelings and emotions cloud his judgment because these things are in the person’s consciousness. Disadvantage: Inflexibility, some scholars believe that since positivists believe everything can be measured and calculated, they tend to be inflexible. Positivists see things as they are and tend to disregard unexplained phenomena.
This process may ultimately detach legal concepts from their moral analogs thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair. Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. When the law itself licenses such reasoning should we understand it, with the inclusive positivist, to incorporate moral standards, or, as per the views of their rival, the exclusive positivist, only to make reference to moral principles?
Another aspect of Hart’s theory is the analysis of the role of judges. Hart holds that even though the majority of rules being applied will be clear, there will be cases where the rule becomes uncertain due to the ‘open texture’ of words, e.g. the definition of ‘vehicle’ is open direction, but don’t require a particular decision like a rule. rather it is merely a functional argument for an effective order that regulates society advantage of this is that the “minimum content” is more general than the natural law theory and can be applied across more legal systems therefore giving a further account of ‘what the law is’ in comparison to natural law. by accepted rules they must use their discretion, looking to the purpose and policy where a definitive list is not supplied .Hart states that where a judge cannot determine a case considerations of the rule judges being able to make decisions based on policy and not law, demonstrating that judges do not become lawmakers, but rather exercise legal principles founded by law in deciding hard or unclear cases; principles being laws that give support for an argument in a certain. Through the use of case examples, Dworkin argues against For example in Riggs v Palmer, the court applied the principle ‘no man may profit from his wrong’ to find that a murder could not inherit under the will of his victim even though the law ‘gap fillers’ in the law, they are being applied to prevent injustices. an advantage over natural law theories ability to determine what the law is. The above demonstrates a disadvantage of Hart’s theory due to the fact that if the law is a system of rules identified by the foundational secondary rule, the rule of recognition does not the strong sense, being able to decide cases without being bound by the law recognize these principles that form a significant part of the law. Also, Hart holds that when there are such hard cases, the judge may either make new laws or extend a current precedent to cover the factual scenario. This choice allows Dworkin to argue that the decision is based on what the judge sees as best for society and not legal determinates. Dworkin states that such a role is for the legislator and opposes that judges hold discretion in
Another disadvantage of Hart’s theory arises when political groups use positive law for oppressive reasons resulting in reduced fidelity of the law. Using the grudge cases of Nazi Germany as an example; where people made use of oppressive laws to resolve personal grudges, under Hart’s theory no matter how immoral the law was, as long as the law was validly made it is still law. Although Hart states that the law may be set aside through retrospective legislation, Hart’s the advantage of Hart’s theory in comparison to Austin’s is that by internalizing obligations as opposed to the command theory, it better describes what the law is as it accounts for the complex structures in the law that fall outside Austin’s theory of coercive obligation. Hart’s and his ‘minimum content of natural law’ better explains what the law is compared to natural law theories that have only recently started coming back into favor after the rise of segregate legal obligation as the duty to obey laws from all other obligations was wrong argument does not progress the worth of fidelity to the law. Finally, it is evident that Hart’s theory of the law as a system of rules fails to recognize legal principles as law, which results in disturbing Hart’s tenet that judges may exercise discretion in the strong sense when faced with hard or unclear cases. Finally, Hart and legal positivism do not promote the worth of fidelity in the law.
If law were to incorporate the moral standards to which it refers it would no longer be able to play this mediating role; identifying the law would require identifying the reasons underlying it. This is because the nature of law is partly determined by its role in giving practical guidance there is theoretical reason for stopping at source-based considerations. The argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law”. Kelsen thought that it followed from this principle that it is possible for the legal order, by obliging the law creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law. Though he regarded this transformation as effected by a sort of tacit legislation. If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. A contrary indication is that it is not subject to the rules of change in a legal system neither courts nor legislators can repeal or amend the law of commutativity.