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Legal Positivism vs. Natural Law Theory, 2005.
Examines and compares these two theories of philosophy of law.
1,353 words (approx. 5.4 pages), 5 sources, MLA, £ 31.95
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Abstract
In the philosophy of law, two competing factions each offer compelling arguments as to the basic nature, origin, authority and responsibility of law. These two theories are known as Natural Law Theory and Legal Positivism. This paper shows that while there are many disagreements between the two theories, at the heart of the argument is the questionable relationship between law and morality. The paper examines how Natural Law Theorists argue that there is an essential and innate overlap between law and morality, while Legal Positivists argue that while the decisions of law and morality do occasionally overlap, there is no natural relationship between them.
From the Paper
"Legal Positivists rely on a sovereign to legislate law; this sovereign,
whether it be a monarch, an aristocracy, an elected parliament, or any other person or body that writes the law for a society. For a sovereign to be considered as such, most, if not all, of the population must follow the sovereign's laws, and there must be a threat of force to enforce the law. If either of these conditions are not met, the leader cannot claim to be a true sovereign entity. Also, the sovereign cannot be subject to another sovereign's authority, such as God; if a sovereign is to be the head of a society and the maker of laws, she must be invulnerable to persuasion or else she is not a sovereign."
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Natural Law vs. Legal Positivism, 2006.
An argument that natural law is superior to legal positivism.
1,350 words (approx. 5.4 pages), 4 sources, £ 36.95
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Abstract
In an increasingly secular world natural law has frequently fallen under intense scrutiny. This paper, however, argues that natural law is superior to legal positivism and stands up well to three common criticism leveled against it; first that natural law is at least as subjective as any statute passed by legal positivists, second that natural law can impress a certain more absolutism and dogmatism upon the crafting and interpretation of the law which is inherently unhealthy in evolving societies, and thirdly that natural law is predicated upon faith and not upon reason as is the positive law tradition.
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Legal Naturalism vs. Legal Positivism, 2002.
A comparison of laws understood to come about naturally or through some form of positive creation.
2,630 words (approx. 10.5 pages), 2 sources, MLA, £ 54.95
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Abstract
This paper examines two of the general theories of law - legal naturalism and legal positivism, both of which have had an enormous influence on law throughout history. The first part of the paper looks at natural law which describes those diverse theories of law that do not accept human law as true law and hold that a particular "something other than the positive law is the true law". The second section examines legal positivism where one of several general theoretical traditions is based on the belief that the source of knowledge lies in experience, not in reason, nor in mind.
From the Paper
"A good example of the usefulness of classical legal naturalism can be seen in the rise of commercial law in the Middle Ages in Europe. As Glendon, Gordon, and Carozza point out, the rise of commercial law took place when Roman civil law provided no adequate coverage of new problems that arose as trade "emerged from the localism and relative economic stagnation of the Middle Ages" in the form of international banking, expanded maritime trade, and rising commercial centers."
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Natural Law and America's Legal System, 2007.
An analysis of how natural law impacts the legal system in the United States.
1,156 words (approx. 4.6 pages), 5 sources, MLA, £ 27.95
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Abstract
This paper presents an examination of how natural law impacts the American legal system. The paper provides a general overview of natural law and then explores how natural law applies to the current legal system in the United States. It argues that the natural law helps to drive the current system and describes how this is true.
Table of Contents:
Introduction
Natural Law
Natural Law and the American Legal System
Conclusion
From the Paper
"Natural law in its most simple form, is the unwritten law of mankind. It is a concept of principle morals and values that are, or at least should be shared by all of mankind because of the central goodness of their concept. (Horowitz, 2000)"
"Natural law is therefore distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular society (Dolhenty, 2004)."
One example of this is the belief that killing is wrong. There are few humans or societies on earth that would disagree with the basic tenet that the murder of another person without reason is wrong. (Green, 2005) It takes a loved one from a family, it removes financial support from children, it takes someone out of society that may have moved on to contribute great things and if one is Christian, then the act of murder is something that God does not allow. It is not up to man to determine who lives or dies, it is God's choice and to kill is to try and play God."
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Legal Positivism and Australian Law, 2004.
This paper defines the concept of legal positivism and examines how it is applicable in the Australian law arena.
1,766 words (approx. 7.1 pages), 5 sources, MLA, £ 39.95
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Abstract
This paper looks at how Australian law is very closely linked with legal positivism, since it revolves around the concept of power. It explains that the sovereign order is treated as the final word, which cannot be altered or amended. While the same is the case in the United States, the writer points out that there is some flexibility towards modern interpretations of law. The United States gives its judiciary enough freedom to interpret law according to the circumstances. The same is, however, missing from the Australian legal system where modern interpretations are often met with disapproval. It concludes that this is the essential difference between legal systems of the two countries, a difference that has turned Australian law into a more rigid and positivistic form of law.
From the Paper
"A law must be resistant to change for that is the whole purpose of implementing laws. However they must also be flexible enough to allow modern interpretation, which is unfortunately not the case in Australia and this, is what makes Australian constitutional law positivist in nature. In other words, when a law is so rigid that it cannot allow modern interpretation and fails to keep pace with changing times, it is said to be positivistic in nature. In such laws, the interpretation is rigidly limited and the original law cannot be molded to suit modern conditions and circumstances. While then United States constitutional law is also highly resistant to change, it is nonetheless flexible enough to allow Supreme and High Courts to seek modern interpretation. However that is not the case in Australia where constitutional law is the final word of authority and to allow the law to keep pace with changing times is seen as a threat to the constitution. A very apt example of this kind of rigidity of law can be seen in Bulun Bulun case of 1999.
In this case, the copyright Law of Australia was under consideration and it was found that the rigid interpretation of the law was closely connected with legal positivism. The painter John Bulun sought Court?s help in combining customary law with the Copyright Act. Mr. Bulun Bulun wanted one of his paintings "Magpie Geese and Water Lilies at the Waterhole", to be seen as a work of co-authorship. He wanted his entire community to be the owner of this property since it was more in line with his customs and cultural beliefs.
Judge Von Doussa however refused to combine customary law with Copyright Law and decided to stay with strict interpretation of the law thus taking a positivistic approach as Bowrey (2001) explains: ?It is difficult to ascertain whether or not von Doussa grasped the cultural implications that flow from his endorsement of these precedents about joint authorship. At key points in the decision closure to consideration of the indigenous point of view was achieved by using legal positivist interpretative practice. He identified the appropriate legal rule concerning joint authorship without reference to any discourse about the meaning of the terminology. Copyright law is "entirely a creature of statute"."
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Natural Law and Plato, 2002.
An overview of Plato's theory of natural law from his work the "Republic".
2,650 words (approx. 10.6 pages), 3 sources, £ 67.95
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Abstract
This paper will explore the area of natural law in the context of a discussion of Plato, and specifically, from his seminal work known as the "Republic". As well this paper analyses and presents the dominant strain of law in the modern context. This paper also focuses on the theory of 'rules' and 'legal positivism'.
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Natural Law, 2006.
An overview of philosophical interpretations of natural law and the problems surrounding this issue.
1,411 words (approx. 5.6 pages), 6 sources, MLA, £ 32.95
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Abstract
The concepts of natural law have been composed by a number of well-known philosophers. However, these multiple compositions have created a lot of problems in the context of the authenticity of the natural law. The paper reveals some of the fundamental problems related to the authenticity of natural law and provides a viable solution. The paper concludes that one can safely assume that correct interpretation of the natural laws lies in the guidelines of the Divine Law.
Paper Outline:
Statement of the Problem
Introduction
Review of Related Literature
Methodology
Collection of Data
Results
Conclusion
Bibliography
From the Paper
"St. Thomas, though, thinks that the natural law is the gateway towards the natural reason of deciding what is good and what is not good or is evil. He also believes that the immoral action of an individual, such as burglary, without the knowledge of right and wrong does not justify him to be judged as a burglar. He can only be judged so if he knew the boundaries of right and wrong and decided to choose the wrong way anyway (Thomas Aquinas, 1947)."
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Natural Law and Canada, 2005.
Examines how the natural law perspective has influenced Canadian laws and lawmakers.
1,350 words (approx. 5.4 pages), 3 sources, £ 36.95
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Abstract
It is indisputable that the natural law perspective has had a powerful influence on Canadian laws and lawmakers. However, some theorists believe that in today's multicultural and diverse societies, natural law is no longer relevant. It is argued in this paper that this is not accurate, and that the natural law perspective continues to have a powerful influence on Canadian laws and lawmakers. It shows, however, that other perspectives also have an influence.
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Natural Law, 2002.
A discussion of the concept of natural law, illustrating a number of different approaches to this concept.
1,450 words (approx. 5.8 pages), 2 sources, MLA, £ 33.95
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Abstract
This paper describes the ancient concept of natural law, which is derived from knowledge of the nature of man. The paper provides a few different approaches to the concept, discussing, among others, Plato and Aristotle's views and beliefs of this issue. The social, political and moral aspects of natural law are examined.
From the Paper
"Natural law requires a minimal moral content as a prerequisite for viewing something as in contravention of the law, while the positivist school holds that the law is whatever the state (in whatever form that exists) says it is. The concept of the natural law has the advantage of being based on something immutable, though admittedly morality may differ somewhat from one society to another. The concept of natural law was first developed in the Greek world and has been carried through to the present day. There are a number of different approaches to this concept. The Graeco-Roman tradition held that there was a natural law that was accessible to mankind through reason. Christian theorists adopted aspects of Cicero's Stoic philosophy, an example of natural law, because of its emphasis on moral content. The Christian legal philosophy that developed was in many ways a fusion between the fundamental Christian teachings and the adapted teachings of the Stoics. Natural law is the belief that there is a higher law than that of a government and that any law to be written by a government must be compared to and brought into line with natural law. This higher law is considered universally valid, and it is reached or perceived by the application of human reason."
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Legal Positivism in the American Political System, 2006.
A look at how legal positivism appears to be the most dominant form of legal theory in the American political system.
675 words (approx. 2.7 pages), 5 sources, £ 18.95
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Abstract
Legal positivism contends that laws are formulated based on the social system of the time and the sources that the social system gives authority to form legal decisions. These sources may be in the form of a constitution, amendments, judicial decisions or state legislation, for example. The belief that legal decisions are based on justice is not the foundation of law in positivism; yet, it is based on what has previously been determined, or posited in the social order. This paper discusses the American political system and contends that the court system of the United States consistently determines law in relation to the American political system based on previous judicial decisions that form the basis of the decisions of the justices.
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John Locke's Theory of Natural Law, 2001.
An analysis of philosopher and politician John Locke's Theory of Natural Law and how this contributed to the pre-Enlightenment era of the seventeenth and early eighteenth centuries.
1,050 words (approx. 4.2 pages), 2 sources, MLA, £ 25.95
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Abstract
This paper looks at this philosophy whereby Locke?s perception of mankind was an extremely optimistic one, and he viewed natural law and the state of nature as being where all men are naturally moral and reasonable, and are born free, equal and possessing the inalienable rights to protect their life, their freedom, and their property.
From the Paper
""Nature is a state of perfect equality amongst all men. In this state, no one man has more power or jurisdiction than any other man." (Locke 1690)
John Locke (1632 - 1704) was a qualified physician and a respected Oxford academic, in addition to being one of several political philosophers who focused on the theories of natural rights and natural law during the pre-Enlightenment era of the seventeenth and early eighteenth centuries. Locke?s theory of natural law, and of the aims and purposes of government, were detailed in his work, ?Two Treatises of Government? (1690), and proved to be influential, not only in Britain, but across the world, especially in America, where his views formed the foundation of the Declaration of Independence and the American system of government."
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Natural Law According to Thomas Hobbes and St.Thomas Aquinas, 2000.
The following essay discusses the existence and meaning of natural law.
1,380 words (approx. 5.5 pages), 2 sources, APA, £ 32.95
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Abstract
The following paper examines why many theorists reject the existence of natural law as well as why many agree to its being defined as a set of innate moral principles which are common to all human beings. It is the aim of this paper to identify and discuss the important similarities and differences that exist between the two theories making reference to the theories of Thomas Hobbes (1588 - 1679) and St.Thomas Aquinas (1224/25 - 1274).
From the Paper
"Aquinas proposed that the essential quality setting human beings apart from the rest of the animal world was that of reason. In a development of Aristotle's theory.Aquinas asserts that all men naturally possess an internalized divine spark of reason,which serves as the guide to an autonomous and responsible decision making process."
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Natural Law Jurisprudence, 1972.
This paper discusses natural law as a philosophical foundation.
1,575 words (approx. 6.3 pages), 16 sources, £ 38.95
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From the Paper
"The idea of natural law is based on a belief that there exists a moral order which every normal person can discover by using his reason. Its role is "to provide a concept of human nature and justice to serve as the rationale for the legal and social system of society,". and its "primary concern . . . is with justice and the moralization of power.".
There is in men, even when they are powerful, some natural inclination to act accordingly to reason in what conditions their power. That is, they naturally seek to establish the legitimacy of their power and also to have their uses of it publicly recognized as legitimate. They are naturally disinclined to appear to themselves or to others as unreasonable, as men who do not act according to virtue, as "unnatural" men."
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Natural Law and Homosexuality, 2002.
A discussion of "what is natural" as viewed by the philosophers Burton M. Leiser and James Rachels.
1,360 words (approx. 5.4 pages), 2 sources, MLA, £ 31.95
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Abstract
The paper gives the opinions of both philosophers regarding natural law and homosexuality and addresses the Christian conception of natural law. Further, the paper asserts that many of the claims for a source for natural law are descriptive and are then distorted into something prescriptive. The paper concludes that natural law is not "natural" at all but is an artificial explanation for why certain behaviors are classified as unnatural.
From the Paper
"When we say something is unnatural, however, there is no objective measure for this term. Man-made laws emerge from the social contract, the mythical agreement by which society was created and by which those who join society agree to abide by its laws. Thus, we know what a law is, we know what breaking a law means, and we do not argue about whether we ought to obey or not because we have accepted this precept as part of the social contract. We are all part of society, so we are all subject to society's laws."
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