Legal Naturalism & Positivism

Two of the general theories of law, legal naturalism and legal positivism, had and continue to have an enormous influence on law throughout history. Those engaged in different pursuits may, however, find one general theory to be of greater use for their particular ends--regardless of their personal conviction as to the superiority of one or the other. Historians, lawyers, and social critics, for example, invoke law for very different purposes and may view one general theory as having greater explanatory power.

All of these activities is, of course, will at times rely on their understanding the implications of both these theories but, in general terms, the historian will find legal naturalism to be of greater utility to the extent that s/he is engaged in understanding the underlying world-views and motivations of peoples in various times and places. The historian engaged in studying laws, however, may find a positivist, universal theory, such as normative theory or the analytical positivism of rule theory, better suited to her/his purposes. The lawyer, on the other hand, is bound by positive law and is interested in what is, rather than what ought to be. Legal positivism is, therefore, of far greater use to her/him since it assumes that it is the law as it is--remote from concerns with justice--that matters and that the law's right to command or to enforce itself is derived, on some rational basis, from the sovereign will of the state, from norms, or from rules. It is

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velopment had, of course, multiple ramifications for politics and economics that continue today. Modern natural law theories are equally based in factors "that exist outside the world of phenomena and contingencies" but rely less on the supernatural and more on the power of reason to discern such entities as the principles of justice (Frantois GTny) or the principles of moral conduct (Jean Dabin). Among other modern proponents of legal naturalism Morris Raphael Cohen claimed that legal science, being a normative science, must be able to derive a system of propositions (in accordance with the requirements of scientific theory) from natural law. In Cohen's opinion "natural law is dependent upon ultimate ethical principles" and ethics, which is the "attempt to organize all our judgments of approval or preference into a coherent system," elucidates the question that must be asked in any normative science regarding what the people of any given society desire and "what limitation does law, as an instrument of social contract, impose upon the ideal it serves?" (Sinha 125). A significant modern theory of natural law that relies on empiricist epistemology is natural law as related to sociology, as formulated by Philip Selznick. His

Category: Government - L