1. NATURAL LAW AND POSITIVISM
Intro:
Relationship between law & morality
The law as it is v the law as it ought to be
Can someone ignore the dictates of the law & follow his conscience
o Is there something as a higher/natural law which trumps positive law?
o Positivists say that law & morality should be kept apart
Le Roux “Natural Law Theories” in Roederer & Moellendorf (eds.) Jurisprudence (2004)
442 BC- Antigone: Appeal to a higher law
King issues a decree that A’s brother mustnt be buried. She disobeys the King & burries her
brother anyways. She is caught & brought before the King:
“It was not Zeus who published this decree, nor have Justice who rule among the dead imposed this
law upon mankind. Nor could I think that a decree of yours- a man- could override the unwritten and
unchanging law of the gods. Their authority is not of today or yesterday. They are eternal. No man
witnessed their birth. Was I to stand trial before the tribunal of the gods for disobeying them, because
I feared a man?”
Do w still regard certain legal principles as eternal & unchanging?
o Do they come directly from a God?
o The laws of men: changing/temporary
o The laws of the Gods: unchanging/permanent
A appeals to her legal rights, does she appeal to her indiv rights?
o No reference to the notion of rights in the quote, only a reference to duty, a higher
moral duty
This duty exists indep of the indiv as the bearer of rights
Nelson Mandela in 1962- quote
“Your Worship, I would say that the whole life of any thinking African in this country drives him
continuously to a conflict between his conscience on the one hand and the law on the other. This
is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who
think and feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell […]
was sentenced, convicted for precisely the type of activities for which I stand before you today, for
following his conscience in the defiance of the law. For him, his duty to the public, his belief in the
morality of the essential rightness of the cause for which he stood, rose superior to his high
respect for the law. He could do no other than oppose nor can many Africans in this country.”
Conflict between conscience & laws
Mandela asserts a conflict betw law as it is and law as it ought to be
o Therefore he simply cannot recognise the legitimacy of the court in which he is being
tried
But what is the basis of this higher law??
Distinction between the “morality of all rational people” and the legality of positive law.
Where procedurally valid law clashes with the universal morality of “thinking and
feeling people”, a duty arises to oppose the law as it is. Dinstinction between the law
as it is and the law as it ought to be
The law as it should be: 3 qualifications.
4 years later Bram Fischer
, “I accept, my Lord, the general rule that for the protection of a society laws should be obeyed.
But when the laws themselves become immoral […] then I believe that a higher duty arises.
This compels one to refuse to recognise such laws. [The apartheid laws] were enacted for the
purpose of silencing the opposition of the large majority of our citizens to a government intent
upon depriving them solely on account of their colour, of the most elementary human rights […]
My conscience, my Lord, does not permit me to afford these laws such recognition as even a
plea of guilty would involve.”
Higher duty also declared.
More radical
Fischer adds 2 extra requirements: respect for basic human rights + law that doesn’t
meet the standard of the natural law, even if procedurally valid, should not be
recognised as law.
o Notions of human dignity & higher law must have a cultural component
The idea of the law as it is versus the law as it should be is characteristic of natural law
thinking.
Origins of natural law - For Bram Fischer – nautral law = closely associated with human
rights
Trad conceptions
what is just can be detected in nature
Nature is regular & orderly & many people thought that if we look closely enough at the law of
nature we could detect the ethical laws that should govern us as a society
Middle ages: this conception started to unravel
Ancient conceptions of natural law
-Greco-Roman conceptions of natural law thinking
Sophosts challenge to idea of nature as intelligible order, regulated by justice
Plato – forms, geometry
o Forms behind reality
o In order to understand justice you have to understand the ideal forms & only
philosophers understand this deep reality therefore they should be the rulers
Aristotleles – telos, natural purpose – find just solutions in intrinsic order of nature
o Biologist
o Believed that all organisms have a purpose
o In human life therefore everything has a purpose & we just need to study the natural
order to find out what justice is
Stoics – inner voice
o Find justice through meditation & human reason
o Seed for the modern conception of natural law & natural rights
-Medieval natural law thinking
Augustine (345-450) and the clash of two traditions
o A = infamous old sinner, he felt very guilty
o Wanted to ground the will of nature in the will of God
o Moves away from reason to God
o Inner contemplation of the presence of God in the soul
Aquinas (1225-1274) and the new reconciliation of the two traditions
o Nature is meaningful & ordered – it can become the basis for a just society
o But it is also a reflection of the divine providence
William van Ockham and the nominalist rejection of the great reconciliation
o Challenged Aquinas
o If it is so that god is absolute, then God can will nature not to be orderly, he can
change/abolish the laws of nature
Intro:
Relationship between law & morality
The law as it is v the law as it ought to be
Can someone ignore the dictates of the law & follow his conscience
o Is there something as a higher/natural law which trumps positive law?
o Positivists say that law & morality should be kept apart
Le Roux “Natural Law Theories” in Roederer & Moellendorf (eds.) Jurisprudence (2004)
442 BC- Antigone: Appeal to a higher law
King issues a decree that A’s brother mustnt be buried. She disobeys the King & burries her
brother anyways. She is caught & brought before the King:
“It was not Zeus who published this decree, nor have Justice who rule among the dead imposed this
law upon mankind. Nor could I think that a decree of yours- a man- could override the unwritten and
unchanging law of the gods. Their authority is not of today or yesterday. They are eternal. No man
witnessed their birth. Was I to stand trial before the tribunal of the gods for disobeying them, because
I feared a man?”
Do w still regard certain legal principles as eternal & unchanging?
o Do they come directly from a God?
o The laws of men: changing/temporary
o The laws of the Gods: unchanging/permanent
A appeals to her legal rights, does she appeal to her indiv rights?
o No reference to the notion of rights in the quote, only a reference to duty, a higher
moral duty
This duty exists indep of the indiv as the bearer of rights
Nelson Mandela in 1962- quote
“Your Worship, I would say that the whole life of any thinking African in this country drives him
continuously to a conflict between his conscience on the one hand and the law on the other. This
is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who
think and feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell […]
was sentenced, convicted for precisely the type of activities for which I stand before you today, for
following his conscience in the defiance of the law. For him, his duty to the public, his belief in the
morality of the essential rightness of the cause for which he stood, rose superior to his high
respect for the law. He could do no other than oppose nor can many Africans in this country.”
Conflict between conscience & laws
Mandela asserts a conflict betw law as it is and law as it ought to be
o Therefore he simply cannot recognise the legitimacy of the court in which he is being
tried
But what is the basis of this higher law??
Distinction between the “morality of all rational people” and the legality of positive law.
Where procedurally valid law clashes with the universal morality of “thinking and
feeling people”, a duty arises to oppose the law as it is. Dinstinction between the law
as it is and the law as it ought to be
The law as it should be: 3 qualifications.
4 years later Bram Fischer
, “I accept, my Lord, the general rule that for the protection of a society laws should be obeyed.
But when the laws themselves become immoral […] then I believe that a higher duty arises.
This compels one to refuse to recognise such laws. [The apartheid laws] were enacted for the
purpose of silencing the opposition of the large majority of our citizens to a government intent
upon depriving them solely on account of their colour, of the most elementary human rights […]
My conscience, my Lord, does not permit me to afford these laws such recognition as even a
plea of guilty would involve.”
Higher duty also declared.
More radical
Fischer adds 2 extra requirements: respect for basic human rights + law that doesn’t
meet the standard of the natural law, even if procedurally valid, should not be
recognised as law.
o Notions of human dignity & higher law must have a cultural component
The idea of the law as it is versus the law as it should be is characteristic of natural law
thinking.
Origins of natural law - For Bram Fischer – nautral law = closely associated with human
rights
Trad conceptions
what is just can be detected in nature
Nature is regular & orderly & many people thought that if we look closely enough at the law of
nature we could detect the ethical laws that should govern us as a society
Middle ages: this conception started to unravel
Ancient conceptions of natural law
-Greco-Roman conceptions of natural law thinking
Sophosts challenge to idea of nature as intelligible order, regulated by justice
Plato – forms, geometry
o Forms behind reality
o In order to understand justice you have to understand the ideal forms & only
philosophers understand this deep reality therefore they should be the rulers
Aristotleles – telos, natural purpose – find just solutions in intrinsic order of nature
o Biologist
o Believed that all organisms have a purpose
o In human life therefore everything has a purpose & we just need to study the natural
order to find out what justice is
Stoics – inner voice
o Find justice through meditation & human reason
o Seed for the modern conception of natural law & natural rights
-Medieval natural law thinking
Augustine (345-450) and the clash of two traditions
o A = infamous old sinner, he felt very guilty
o Wanted to ground the will of nature in the will of God
o Moves away from reason to God
o Inner contemplation of the presence of God in the soul
Aquinas (1225-1274) and the new reconciliation of the two traditions
o Nature is meaningful & ordered – it can become the basis for a just society
o But it is also a reflection of the divine providence
William van Ockham and the nominalist rejection of the great reconciliation
o Challenged Aquinas
o If it is so that god is absolute, then God can will nature not to be orderly, he can
change/abolish the laws of nature
