Dyamond Jefferies
JURI 610
Legal Positivism and Natural Law Theories
Though there are other legal theories, the legal concepts offered by Han Kelsen's Pure
Theory of Law, John Finnis' Natural Law Theory, Lon Fuller's Natural Law Theory, and H.L.A.
Hart's Legal Positivism will be the main emphasis of this research. We'll examine each of these
theories to see if it aligns with or deviates from the biblical view of law and how it might be
applied to contemporary legal concerns.
Legal positivism is "founded on the basic tenet that the accurate description of law is a
worthwhile objective and a task that needs to be kept separate from moral judgments, “according
to H.L.A. Hart.1 Professor Bix claims that legal positivism, which forms the basis of
contemporary social philosophy, distinguishes between what law is and what law ought to be.2
On the other hand, proponents of legal positivism contend that just because a law exists, it does
not always imply that it is fair or legitimate and that not all laws ought to be adhered to.
Considering this, legal positivism theory is based on the "separation thesis," which explains why
morality and the law should be kept apart.3 Hart wrote during a turbulent period of fascism,
Nazism, and communism; hence, the unjust and immoral laws that were upheld and caused
millions of deaths had an impact on his separation of morality and the law. Furthermore, Hart's
positivism is explained much more clearly by Eerik Lagerspetz:
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1 BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT (7th ed. 2019) Pg 35
2 Id at Pg 31.
3 Id at Pg 36.
“For Hartian positivism, the distinction between different judgments is fundamental. When we
recognize it, another alleged distinction becomes unnecessary. It is often claimed that for
positivism, the fundamental claim is that there is a semantical difference between “legal
obligation” and “moral obligation”. The institutional separation of moral and legal practices is,
however, social contingent. In some societies, it is impossible to draw the line……A Hartian
positivist can consistently say that existing legal and moral practices are necessarily
interconnected, indeed, that law is only a highly institutionalized form of morality, but that law
and existing morality as they are and they should be are different things4.”
There is a vast array of diverse legal ideas in the world. Nonetheless, the terms liberal and
conservative are most frequently employed in the contemporary world. Legal positivism and
natural law legal doctrines will be examined in this essay. Some representation of these various
theories from the perspectives of various theorists will be included. A biblical worldview will be
applied to a study of the coherence and incoherence of natural law theories and legal positivism.
Along with contrasting and comparing the two philosophies' underlying tenets.5
The idea known as legal positivism emphasizes the traditional aspect of law, which is that
it was made by humans. More specifically, it is the belief that it is both feasible and beneficial to
develop a descriptive theory of law, or at the very least, a morally neutral theory.6 Reasoning,
divinely given commands, and the conception of human rights are all rejected by legal
positivism. Legal positivism holds that positive norms, or standards established by legislators
and regarded as common law or case law, are equivalent to law.
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4 J. Finnis, Natural Law & Natural Rights, (2nd ed. 2011)
5 B. Bix, On the Dividing Line Between Natural Law Theory and Legal Positivism, 75 N. D. Law Rev. 1613 (2001)
6 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
Social norms have all the formal requirements to be classified as law, including origins, efficacy,
and enforcement.7 Theorists of legal positivism, like John Austin, contend that the question of
what constitutes law can and ought to be distinct from the question of what law is. According to
John Austin:
The existence of law is one thing; its merit or demerit is 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. A law, which actually exists, is a law, though we happen to dislike it, or though it vary
from the text, by which we regulate our approbation and disapprobation.7
Lutheran legal theory defines law as the states will articulate in a set of regulations and
upheld by coercive measures in terms of positivism. Law is studied as nothing more or less than
what is socially acceptable to societal norms according to legal positivism. Legal positivism
looks for norms that society has decided are socially acceptable rather than moral ones.
According to Andrei Marmor, the idea that "deciding what the law is does not necessarily, or
conceptually, depend on moral or other evaluative considerations about what the law ought to be
in the relevant circumstances" unites all legal positivist schools.8
This legal school of thought is rather current and was given more full recognition by laws
that provided clarification. This law school was created by H.L.A. Hart. Hart is well-known for
his contributions to legal positivism from a precise and legal perspective in general.9
7 T. Murphy, Hans Kelsen’s Pure Theory of Law, West. Juri. 251 (2015)
8 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
9 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
Although his positivist predecessors, Jeremy Bentham and John Austin, were considered
intellectual giants, he angrily challenged their ideas for ignoring the normative aspect of law—
that is, the focus on what should be. He continues by asserting that morality and law are
unrelated and cannot be compared to morals. 10
Since Hart believed that no other right-holding model could accurately capture the role of
rights in promoting individual autonomy, he included this notion. His understanding of rights
was based on liberal theories, similar to his other political beliefs. The only other 20th-century
leading legal scholar who could match H.L.A. Hart's standing as the greatest Anglophone legal
scholar was Hans Kelsen.11 Hart built his argument on exact legal positivist principles,
demonstrating a deep affinity for legal philosophers and the relationships between morality and
the law. However, natural law is the view that holds that the law examines human morality and,
as a result, adapts the legal system to human behavior.12
Definition of natural law a law whose content is set by nature and that therefore has
validity everywhere. Natural law refers to the use of reason to analyze human nature and deduce
binding rules of moral behavior. Idea of perfect law based on equity, fairness, and reason, by
which all man-made laws (see positive law) are to be measured and to which they must (as
closely as possible) conform. Natural law is derived from the concept that the entire universe is
governed by cosmic laws on which human conduct should be based, and which can be deduced
through reasoning and the moral sense of what is right or wrong.13
10 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
11 J. Feinberg & J. Coleman, Philosophy of Law, (6th ed. 1999)
12 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
13 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
According to natural law theory, people are born with inherent rights—rights that are not
bestowed upon them by lawmakers but rather are given to them by God. The doctrine of natural
law is a legal and philosophical conviction that fundamental, innate laws—also known as laws of
nature—that govern all people are distinct from those that are enacted by legislation. The divine
creator bestowed upon humanity the moral consciousness to uphold morality through natural
law. Natural law therefore looks for the appropriate repercussions for the actions that humans
choose to take.14 Natural law is stated by Robert P. George as follows:
Natural Law is said to have three sets of principles: a set of principles that direct human
choice and action toward intelligible purposes; another set of intermediate moral principles that
specify the most basic principles of morality by directing choice and action that is driven by a
will toward integral human fulfilment; and finally, a set of fully specific moral norms that
prescribes specific possible choices to be required or forbidden.15
It is the legal theory that was developed by humans, according to the legal positivism theory.
Natural law, on the other hand, is created by God. Thus, the doctrine of legal positivism does not
all adhere to or possess a biblical worldview. According to Dr. Charles J. Reid Jr., there are three
antinomies that influence how people currently understand the purpose and essence of law. They
are as follows:
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14 W. J. Stuntz, Christian Legal Theory, 116 Harv. Law Rev. (2003)
15 W. J. Stuntz, Christian Legal Theory, 116 Harv. Law Rev. (2003)
(1) Law consists of commands backed by power, force, and external compulsion. Questions
concerning the rightness or justice of those commands are not to be considered when
determining whether a particular act of sovereign will should be law.16 (2) Law and
morality should and must be viewed as existing as separate and apart from one another.
Thus, the relative moral content of a given legal provision ought to have nothing to do
with the question whether the provision should count as law. This is not to say that moral
considerations should be excluded from law-making, only that the moral content of a
particular sovereign decree should never be used in determining whether to count a
particular sovereign decree as law.17 (3) Finally, in determining whether a particular
command, rule, or principle should count as law, one is allowed only to consider its
formal source. If it emanates from an officially-sanctioned source, such as the legislature
or judiciary, and is supported by the Rule of Recognition in a given society or by that
society’s Grandmom, then it counts as law. And it counts as law, irrespective, once again,
of its content. Whether it is wise or foolish, moral, or immoral, it nevertheless remains the
duly adopted law of the particular jurisdiction.18
Conversely, traditional legal positivism ultimately depends on the idea that the government
has unrestricted authority to enact laws. The court's decisions and opinions are the only
foundation for this legal positivist paradigm.
16 H. J. Berman, Faith and Order: The Reconciliation of Law and Religion, (1993)
17 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
18 B. Shmueli & Y. Sinai, Liability Under Uncertain Causation? Four Talmudic Answers to a Contemporary
Tort Dilemma,
Furthermore, positivists recognize that a legal system may specifically incorporate certain
moral principles that direct the implementation of the law, such as the US Constitution's equal
protection and due process sections. Natural law approaches law from a more moral standpoint.
Making individuals aware of what is proper and bad in the process. The methodology commonly
referred to as "natural law," historically of its contents and interpretations of the implications of
the presence of a "higher law.19 "This means that the people must assess their circumstances in
light of legal positivism, which develops rules based on social norms, and the ways in which
laws of the divine creator conflict with one another. A logical and unified governmental system
was necessary to preserve classical culture; the theory of natural law supplied this, contending
that there is a universal legal system that is understandable to all reasonable people. Natural law
is designed to help people reason from their inherent morality when making judgments based on
their actions. Cicero had a significant impact on his natural law philosophy.20 It looks like this:
True law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting; it summons to duty by its commands, and averts from wrongdoing by its
prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though
neither have an effect on the wicked. It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish entirely. We cannot be freed from
its obligations by senate or people, and we need not look outside ourselves for and expounder or
interpreter of it. 21
19 T. Murphy, Hans Kelsen’s Pure Theory of Law, West. Juri. 251 (2015)
20 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
21 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
There will not be different laws at Rome and at Athens, or different laws now and in the
future, but one eternal and unchangeable law will be valid for all nations and all times, and there
will be one master and ruler, that is, God, over us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and
denying his human nature, and by reason of this very fact he will suffer the worst penalties, even
if he escapes what is commonly considered punishment?
Therefore, natural law theory adheres to a biblical worldview to a greater extent than legal
positivism. According to Romans 2:15, "They demonstrate that the demands of the law are
written on their hearts, their consciences bearing witness, and their thoughts accusing and
defending them at different times."22
The US Constitution is one of the most important modern legal issues of the last twenty
years. Some defended positivist concepts in the name of constitutionalism, while others
denounced them in the sake of democracy.18 But what has turned into a legal dispute is how the
constitution should be interpreted. The Democratic administration's interpretation of the
constitution differs from the Republican administration's understanding of how the founding
fathers intended it to be read.
Not surprisingly, then, when conservative appointees gradually came to dominate the Court
in the late twentieth century, they began shifting its language of constitutional jurisprudence
back toward positivist principles, this time—unlike the prior swing toward constitutional
positivism after 1937—shaped to serve not the liberal values of the New Deal but the
conservative values of the post-sixties Republican coalition.23
22 B. Bix, Jurisprudence: Theory and Context, (7th ed. 2015)
23 T. Murphy, Hans Kelsen’s Pure Theory of Law, West. Juri. 251 (2015)
Today the administration currently in office is trying to change the way the constitution was
meant to govern. They are simply stating that the constitution is them the government, not the
people governing the government.24 Therefore, one is free to read the Constitution whatever they
see fit, regardless of the implications for the people of the United States. However, there are
individuals who want the Constitution to be construed in a way that advances their own agendas,
and here is where the legal positivism and the Constitution clash.
Democratic positivism is a theory in tension in so far as the positivist aspects involved can
come into conflict with its democratic elements. For instance, a democratic political process may
come up with a decision to depart from the rule of positive law in favor of more particular and
less formal outcomes.25
Since this is how this country was formed by its founding fathers, one will also reexamine
the Constitution when it comes to the modern question of natural law.
Our legal culture has lost the context in which the Constitution was written. I speak of the
natural law, the idea of law as founded upon reason and logic and not merely the ipse dixit of a
given power. This has had profound implications for the modern misinterpretation of the
Constitution.26
24 I. Cotler, Jewish NGOs, Human Rights, and Public Advocacy: A Comparative Inquiry, 11 Jew. Pol. Stu. Rev. 61
(1999)
25 Sanhedrin 4:1. 22a (Jerusalem Talmud)
26 W. J. Stuntz, Christian Legal Theory, 116 Harv. Law Rev. (2003)
It is at this point that the opposing party, the Republicans, realize how crucial it is to keep
in mind that natural law doctrine served as the foundation for the Constitution.27 As a result, a
Republican-led government fully interprets the Constitution's natural law in addition to
understanding legal positivism as a component of it.
The fundamental principles of natural law serve as the cornerstone for the spirit of the
Constitution. Without a thorough grasp of the Founders' natural law theory, many of the concepts
and technical phrases utilized in the Constitution are impossible to comprehend. Being
completely aware of one's inalienable rights is essential to comprehending legal matters.
The activities that one person cannot morally perform to another are defined by natural rights.
They don't outline the recommended course of action. One approach to expressing these basic
rights is the reference to the right to "life, liberty, and the pursuit of happiness" in the Declaration
of Independence. Over the past few years, violations of fundamental rights have been
increasingly prevalent. It was intended to prevent situations when a single administration tries to
alter everything. These are questions of natural law as well as legal positivism. Natural law seeks
to maintain the original founding fathers' understanding of the constitution, while legal
positivism seeks to conform to one side's objective.28
A close examination of the various lookouts of Hans Kelsen's Pure Theory of Law,
H.L.A. Hart's Legal Positivism, Lon Fuller's Natural Law Theory, and John Finnis' Natural Law.
27 W. J. Stuntz, Christian Legal Theory, 116 Harv. Law Rev. (2003)
28 W. J. Stuntz, Christian Legal Theory, 116 Harv. Law Rev. (2003)
Theory reveals commonalities between the biblical perspective of law and the legal systems.
First of all, Hart and Kelsen disagree with the idea that there is a higher standard for the Law and
that all of the laws (commandments) outlined in the Bible should be based on the teachings of
Christ, the Lord.
Legal positivists believe that morality shouldn't be a prerequisite for societal acceptance
of the law. However, the biblical perspective on law holds that laws must be upheld regardless of
their moral propriety even if someone finds it objectionable.29 In contrast to Fuller, both Fuller
and Kelsen believe that religion has no place in law and never should.
In conclusion, despite their many differences, legal positivism and natural law both make
explicit theoretical appeals to the law. According to legal positivism, penalties and laws created
by humans are determined by a judge's interpretation of the law as understood by attorneys. In
contrast, natural law is divine law that is instilled in us from birth. That person is meant to
comprehend that their actions have divine and moral ramifications. When it comes to legal
matters, natural law interprets the law as the divine creator and the founding fathers intended it to
be, while legal positivism uses the constitution to further its own goals.30 Although both share a
basic comprehension of a biblical worldview, natural law is more about what the almighty
creator meant for humankind.
29 B. Bix, On the Dividing Line Between Natural Law Theory and Legal Positivism, 75 N. D. Law Rev.
1613 (2001)
30 B. Bix, On the Dividing Line Between Natural Law Theory and Legal Positivism, 75 N. D. Law Rev.
1613 (2001)
