Natural Law Theory VS. Positive Law Theory.

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What makes the law legitimate? What is a legitimate source
of law? What binds people toobey the law? Is there an
essential connection between the law and morality? Can the
content of a law disqualify it from being considered a
legitimate law, which must be obeyed? This debatehas been
taken up by two major groups of legal theorists: Natural Law
theorists and LegalPositivists. Natural Law theorists such
as Plato, Aristotle, and St. Thomas Aquinas argue that alaw
is only just and legitimate if it promotes the common good.
For Legal Positivists like JohnAustin, H.L.A Hart, and
Thomas Hobbes, a law is legitimate if it has been enacted
through theproper channels by someone with the power to do
so regardless of the content of that law. Whileeach theorist
presents his own explanation, each seeks to answer these
crucial questions aboutlaw and society.Legitimate laws must
come from legitimate sources. Legal Positivists argue that
for thesource of law to be legitimate, it must come from a
source of power. For Austin, the source of law must be the
only person who the subjects are in the habit of obeying.
They must also bewilling to back their sanctions and laws
with credible force. Natural Law theorists posit that
thesource of law is divine or can be discovered and formed
according to what is just and willpromote the common good.
Aquinas takes the stance that the source of divine law is
God.Human laws are derived from these divine laws and
practical reason. Aristotle and Plato agreethat concepts of
law and justice are derived from nature and reason, which
govern actions tomove toward the higher good. Aquinas makes
the distinction that the person or persons whomakes the law
must be in care of the community. This is similar to Hobbes
in that he believes theduty of those who make law to be to
care for and protect the society that they govern. Hobbes
finds a middle path on the topic of the source of law. He
contends that the individualsubordinates himself to the
sovereign who can create and enforce laws according to a
socialcontract with the people.
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Hart differs from Austin in that he believes that the
sovereign cannotsimply make laws as he or she pleases. The
source of law is the sovereign who produces lawsthrough
following primary and secondary rules.Natural Law theorist
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St. Thomas Aquinas argues that human law is legitimate only
if it isin line with divine law and promotes universal
happiness. All law is fashioned to the commonwelfare of men.
He posits that neglecting Gods law or the universal
happiness in the formation
of a law makes it unjust. Accordingly, Aquinas advances that
an unjust law is not a legitimatelaw at all and does not
have to be obeyed.
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In stark contrast, Legal Positivist John Austincontends that
legitimate law is nothing more than commands from a
sovereign to the people whomust obey him backed by credible
threats and sanctions.
The laws legitimacy is completely
independent of the morality of its content and must always
be obeyed. It draws its validity fromthe power of the
sovereign who is the only ruler that subjects are in the
habit of obeying. Heargues that the law as it exists is
separate from what it ought to be. Natural Law Theorists
hecklethis notion because it shows no concern for morality
or protection of the people. Austinmaintains the division
between morality and the law and concludes that the content
of the law is legitimate through the power that created it.
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On the more moderate end of the Legal Positivisttradition is
a philosopher who was influenced by both Natural and
Positivist jurisprudence.Thomas Hobbes argues that the law
receives its legitimacy from a social contract between
thepeople who are governed and their sovereign. He likens
government to a biblical sea monster.Like an anatomical
head, the sovereign rules over the body of subjects whose
power is beneathit. Like the monster, the government is
all-powerful. Yet unlike Austin, he believes there to be
limits to political obligation. He argues that when a
citizens life is in danger, they have the right
to disobey the government or a law.
Challenging Austins
idea that the law is legitimate becauseof the credible force
of the sovereign is H.L.A. Hart.
He agrees with Hobbes idea that laws are
social contracts between the government and the people. He
contends that legitimate law is not just commands backed by
real force and sanctions, but because it has been enacted
throughprimary and secondary rules. If a law has been dually
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enacted where primary rules regulateconduct and secondary
rules allow primary rules to be created or altered then it
is legitimate andmust be obeyed.
Additionally, Hart sees that Austins Command Theory
presents a problem in
the varying types of laws that he believes need to be in
place, notably those
conferring legalpowers to adjudicate or legislate (public
powers) or to create or vary legal relations (privatepowers)
which cannot, without absurdity, be construed as orders
backed by threats.

Similar to the concept of legitimate law is the concept of

what is just. Natural Lawtheorists Plato and Aristotle
advance the idea justice is a virtue. It is an inseparable
part of oneself and is a driving force toward the common
good. Those who subscribe to the Natural Lawtradition claim
that what is good and just is based on an objective standard
of what is right andwrong. Plato argues that there is an
order to the universe which He posits that the just man
cando nothing to harm anyone else and does his part as an
individual in society to help it function.Aristotle posits
that each man should get what is due to him and that every
action has a motiveand it is to move toward the higher good.
He also posits that justice is more than just beinghonest
and following the obligations provided by the law. This
implies that the law is open tointerpretation and criticism
if the content obligates one to go against the goal of a
peacefulcoexistence. Aristotle agrees with Plato in giving
each man his right is just as long as it promotes
the good, or distributive justice.
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They argue that the law is out in the world waiting to
bediscovered. The law reveals itself when people live
virtuously to help achieve the common good.For example,

Suppose that a friend when in his right mind has deposited

arms with me and heasks for them when he is not in his right
mind, ought I to give them back to him? No one wouldsay that
I ought or that I should be right in doing so, any more than
they would say that I oughtalways to speak the truth to one
who is in his condition.
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Their theoretical perspectives can beattributed to their
philosophical time period as opposed to the more practical
thinkers of latertimes.Once legitimate sources have created
legitimate and just laws, there must be a reason asto why
people are compelled to follow or obey them. Natural Law
subscribers believe that the ultimate end is the greater
good and law is ordered to serve the wellbeing of man. Good
lawsshould be followed because they follow reason and are
inherently valuable and are a means tothe ultimate human end
or telos. Additionally, they argue that man was given
reason, whichdistinguishes him from beasts. It is this
reason, which allows him to control his actions andimpulses
to act justly. Acting justly and virtuously leads to the
good life and the ultimatehappiness. Opposite these thinkers
is Austin. He believes that people are obedient to the
letter of the law because if they do not then they will be
punished with force. Fear becomes a motivatorfor obedience
for both Austin and Hobbes. Hobbes contends that the
reasonable person wouldgive up certain rights and willingly
submit to the authority of a sovereign to maintain
protectionand peace in society. They have willingly engaged
in a social contract, which binds them to obey
if the sovereigns protective obligatio
ns are met. They are motivated to obey because of the fearof
life outside of the safety of the sovereignty, in the world
of unpredictable, reasonless war. Hartsides with Hobbes on
the idea that people are obedient to the law because they
are involved in asocial contract. Hart sees that the
subjects agree to follow and be obedient to the laws if they
aremade and changed according to the agreed upon primary and
secondary rules of that governmentor society.Each
philosopher sought to answer what makes law or juice
legitimate. For some such asthe Natural Law theorists, it
comes a drive toward the greater good, reason and the
divinethrough discovery or someone in the care of the
community; and is maintained through the samemeans, which
discovered and created it. For others such as Legal
positivists it comes frompower or a social contract, which
binds subjects with fear, force, or reason. The two
groupsintersect and diverge at varying points, but all
ultimately seek to understand a part of what is socentral to
the human condition, the law.
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