Natural law and legal positivism essays

“Laws therefore human, of what kind soever, are available by consent.” Ibid.
Photo provided by Flickr

Natural law and positivism - Essay Example - Studentshare

3. That if his heirs had, there being no law of nature, nor positive law of God, that determines which is the right heir in all cases that may arise, the right of succession, and consequently of bearing rule, could not have been certainly determined:

Natural law is by definition a set of ethical rules that people use to govern themselves
Photo provided by Flickr

The Difference Between Natural Law and Legal Positivism

Life itself exists only by a modicum of organization, achieved and transmitted through a world of change: the momentum of such organization first creates a difference between good and evil, or gives them meaning at all. Thus the core of life is always hereditary, steadfast, and classical; the margin of barbarism and blind adventure round it may be as wide as you will, and in some wild hearts the love of this fluid margin may be keen, as might be any other loose passion. But to preach barbarism as the only good, in ignorance or hatred of the possible perfection of every natural thing, was a scandal: a belated Calvinism that remained fanatical after ceasing to be Christian. And there was a further circumstance which made this attitude particularly odious to me. This romantic love of evil was not thoroughgoing: wilfulness and disorder were to reign only in spiritual matters; in government and industry, even in natural science, all was to be order and mechanical progress. Thus the absence of a positive religion and of a legislation, like that of the ancients, intended to be rational and final, was very far from liberating the spirit for higher flights: on the contrary, it opened the door to the pervasive tyranny of the world over the soul. And no wonder: a soul rebellious to its moral heritage is too weak to reach any firm definition of its inner life. It will feel lost and empty unless it summons the random labours of the contemporary world to fill and to enslave it. It must let mechanical and civic achievements reconcile it to its own moral confusion and triviality.

LEGAL POSITIVISM and NATURAL LAW THEORY - …
Photo provided by Flickr

This is the chief error of fact in my critics. They are positivists; apparently know nothing of poetry, history, or religion except their physical obstructive presence as words, events, and ceremonies. But I never, not in my earliest boyhood, was superstitious. I never expected fictions to interfere with or prolong physical processes. In this sense I never believe in another world that coexisted with this one. What I suffered from was distaste for this world, and liking in pure speculation, in a sort [of] challenge, to say "Life is a Dream". It was not the Bible stories or the Church dogmas that troubled me. I was perfectly at home with them; but being dreams, and exercising no compulsion over me or my actions, they were all more or less welcome, according to the imagination and emotion that belonged to them, as to Greek or Shakespearean tragedies[.] The idea of your friend (and of all positivists) that it is the outside, the cultus, that attaches people to the Church is based simply on ignorance. Most Catholic crowds have little aesthetic perception; but they have dramatic sympathy; they feel the catharsis of the passions evoked, and the ceremonies merely stage the play that fills the imagination. But when people have no imagination (or take such as they have for true knowledge of fact) they cannot conceive anything of human importance, history, poetry, religion, or art, as anything but true or false reporting of physical events in our world. If our world was a dream (and so it actually is in its sensuous or imaginative dimensions) it will vanish for each of us when we die. Nothing will probably succeed it for us: but other dreams are probably present to spirit at other times, seeming other worlds. Our good dreams (poetry) are, however, a part of our world, its best part, because they are focussed on what is, for us, most congenial. There is therefore no conflict in a disillusioned mind, between science and poetry, or religion well understood.

LEGAL POSITIVISM and NATURAL LAW THEORY James B
Photo provided by Flickr


Definition and explanation of natural law theory with bibliography.

If paternal right, the act of begetting, give a man rule and dominion, inheritance or primogeniture can give no title; for he that cannot succeed to his father’s title, which was begetting, cannot succeed to that power over his brethren, which his father had by paternal right over them. But of this I shall have occasion to say more in another place. This is plain in the mean time, that any government, whether supposed to be at first founded in paternal right, consent of the people, or the positive appointment of God himself, which can supersede either of the other, and so begin a new government, upon a new foundation; I say, any government began upon either of these, can by right of succession come to those only, who have the title of him they succeed to: power founded on contract can descend only to him who has right by that contract: power founded on begetting, he only can have that begets; and power founded on the positive grant or donation of God, he only can have by right of succession to whom that grant directs it.

John - Finnis // The Law School // University of Notre …

We must know how the first ruler, from whom any one claims, came by his authority, upon what ground any one has empire, what his title is to it, before we can know who has a right to succeed him in it, and inherit it from him: if the agreement and consent of men first gave a sceptre into any one’s hand, or put a crown on his head, that also must direct its descent and conveyance; for the same authority that made the first a lawful ruler, must make the second too, and so give right of succession: in this case inheritance, or primogeniture, can in itself have no right, no pretence to it, any farther than that consent which established the form of the government, hath so settled the succession. And thus we see the succession of crowns, in several countries, places it on different heads, and he comes by right of succession to be a prince in one place, who would be a subject in another.

Legal exegesis is based on a positivist conception of law

To return to the argument in hand; this is evident, That paternal power arising only from begetting, for in that our author places it alone, can neither be transferred nor inherited: and he that does not beget, can no more have paternal power, which arises from thence, than he can have a right to any thing, who performs not the condition to which only it is annexed. If one should ask, by what law has a father power over his children? it will be answered, no doubt, by the law of nature, which gives such a power over them, to him that begets them. If one should ask likewise, by what law does our author’s heir come by a right to inherit? I think it would be answered by the law of nature too: for I find not that our author brings one word of scripture to prove the right of such an heir he speaks of. Why then the law of nature gives fathers paternal power over their children, because they did beget them: and the same law of nature gives the paternal power to the heir over his brethern, who did not beget them: whence it follows, that either the father has not his paternal power by begetting, or else that the heir has it not at all; for it is hard to understand how the law of nature, which is the law of reason, can give the paternal power to the father over his children, for the only reason of begetting; and to the first-born over his brethren without this only reason, i. e. for no reason at all: and if the eldest, by the law of nature, can inherit this paternal power, without the only reason that gives a title to it, so may the youngest as well as he, and a stranger as well as either; for where there is no reason for any one, as there is not, but for him that begets, all have an equal title. I am sure our author offers no reason; and when any body does, we shall see whether it will hold or no.