WHY DO WE OBEY LAW POSITIVISM OR NATURALISM BY - SAMIR HALDER
WHY DO WE OBEY LAW POSITIVISM OR NATURALISM
AUTHORED BY
- SAMIR HALDER
Abstract
Sought to this answer behind this
society; I have discussed about NATURALISM AND POSITIVISM. How Naturalism and
positivism these two philosophical aspects or instruments is totally oppose to
each other, where naturalism simply talks about nature and morality and
positivism is positive theory of law, which is focused on what is law. Jurists
definition and Debate has been discussed here and clarified here that which one
is most important between the both and why we should obey the law between the
both.
Introduction
Natural law is an obscure
terminology; in jurisprudence natural law is not only legal theory, also a
theories of morality. It not only define about law of nature but also make the
relation between the law and morality."FRIEDMANN point out that natural
law inspired by two ideas, one is Universal order which is governing to the men
another is inalienable rights of the individual, “natural laws are made for or
by the logic and reason not for the emotions or passions,
Natural law is an obscure terminology;in
jurisprudence natural law is not only legal theory, also a theories of
morality.it not only define about law of nature but also make the relation
between the law and morality."FRIEDMANN point out that natural law
inspired by two ideas, one is Universal order which is governing to the men
another is inalienable rights of the individual, “natural laws are made for or
by the logic and reason not for the emotions or passions,
Positivism means in the sense of law
emanating from a real source, which is obligatory, binding and sanction.
Positivist are focused on what is law, and on the legal theories.
The best way to describe about the
basic theories on natural law or positive law then :-If a beggar come to me and
need some food for eat, then if I ignore him/her to give some foods, after then
if I knocked that beggar person has died then whether should I be liable
under IPC; no because ignore to giving him/her some foods is morality because
there was not my intention to kill him/her. That is called morality. And
positivist will try to clarify the reason behind then, as that beggar person
could have been earned for save himself by working and fooding, but he did not.
If everyone showing morality to every beggar to giving foods, cloths then
beggar persons will leave to earn and doing job. Then begging will be increase
day by day thus however it is not obligatory to provide foods, cloths, money to
every beggar persons, due to the above reasons reasons if the beggar got died
it is not an offence. So type of overlap between the legal and moral theories
is most noticeable.
Law is needed in the society for
maintaining the society, if there is no law there not will be order. If we not
find any punishment for any offence, then offence will be increasing day by
day, so naturalism and positivism is tha natural humanistic approach towards
law and and punishments which is based on this approach. But this natural
humanistic approach is different for different peopls and different situations,
Example:- if A murder B then A will be punishable under section 302 of IPC, but
if anyone died due to get insufficient food then that will be fall in morality
then others person will not be liable for the died person.
Literature
Review
Understanding why individuals obey
laws is a crucial inquiry within legal theory and social science. This literature
review explores key theories and frameworks from legal positivism and natural
law, highlighting their contributions to our understanding of legal obedience
in this research paper.
Hypothesis
Hypothesis
Statement: The reasons individuals obey the law can be
understood through two distinct frameworks: legal positivism, which posits that
obedience is primarily a function of social authority and institutional
legitimacy, and natural law, which argues that obedience arises from an
inherent moral obligation aligned with universal ethical principles.
Key
Components of the Hypothesis
- Legal Positivism:
- Authority Recognition: Individuals obey the law because they recognize the authority of
legal institutions and understand the consequences of non-compliance.
- Social Order: Obedience is motivated by a desire for social stability and
predictability, where laws function as guidelines for behavior within
society.
- Pragmatic Compliance: Fear of punishment or desire for social approval leads
individuals to conform to legal norms.
- Natural Law:
- Moral Obligation: Individuals obey the law because they believe in a moral duty to
adhere to principles that reflect justice and the common good.
- Innate Sense of Justice: There exists an inherent understanding of right and wrong that
influences compliance with laws perceived as morally just.
- Alignment with Ethical
Standards: Laws that resonate with universal ethical
principles foster voluntary compliance, as individuals feel a sense of
responsibility to uphold these values.
Research Implications
- Comparative Analysis: This hypothesis invites empirical research to examine the
relative influence of authority versus morality in legal obedience across
different cultures and legal systems.
- Interplay of Factors: Investigating how elements of both positivism and naturalism
interact could provide deeper insights into legal compliance.
- Contextual Variations: Understanding how situational factors (e.g., the perceived
legitimacy of the law, social norms, individual beliefs) impact obedience
can further refine this hypothesis.
Research Problem
The
question of why individuals obey the law remains a central issue in legal
theory and social science. This research seeks to explore the underlying
motivations for legal obedience through the lenses of legal positivism and
natural law. Specifically, the problem lies in understanding how these two
frameworks account for compliance with legal norms and the implications for
governance, social order, and moral behavior.
Key
Questions
- What motivates
individuals to obey laws from a positivist perspective?
- How do authority, social
constructs, and fear of sanctions influence legal compliance?
- What role do
institutions play in shaping perceptions of legitimacy?
- What motivates
individuals to obey laws from a natural law perspective?
- How does an individual's
moral belief system affect their perception of legal obligations?
- To what extent do
universal ethical principles inform compliance with laws?
- How do positivism and
naturalism interact in influencing legal obedience?
- Are there situations
where one framework predominates over the other?
- How do cultural, social,
and situational factors mediate the relationship between these theories
and actual behavior?
Rationale for the Research
Understanding
why individuals obey the law is crucial for:
- Legal Theory: Providing insights into the foundational principles that guide
legal systems and their effectiveness.
- Policy Making: Informing lawmakers about how to design laws that promote
compliance and enhance social order.
- Social Justice: Exploring how perceptions of morality and justice influence
adherence to laws, particularly in diverse societies.
Research Objectives
- To analyze the motivations for
legal obedience through the frameworks of positivism and natural law.
- To assess the influence of
social authority versus moral obligation on compliance with laws.
- To evaluate how contextual
factors shape the interplay between positivist and naturalist motivations
in different populations.
Methodology
The
proposed research will be conducted using doctrinal as well as empirical approach,
especially using qualitative, descriptive, and analytical techniques. The
proposed study will draw data from both primary and secondary sources from
books and journals.
POSITIVISM
Positivism word first used by August
Compete who was a sociological professor.
Positivism comes from Latin word
positus which means to posit,postulate or Strongly covering the existence of
something. which means "as it is" not "ought to be"
Legal positivism is school of thought
of analytical jurisprudence which was developed by legal philosophers
during 18TH and 19TH centuries Geremy Bentham and John Austin is the profounder
of legal positivism who were developed the positivist theory, Austin was
rejects the natural law on the ground that it is Ambiguous and misleading. No natural
rights are for the individual against the state all rights are created by
states only.
Positivists believes that only
legitimate source of law, which may be written rules regulations ,principles
which have been enacted, or recognised by government ,judicial body, or
tribunal etc. when some question is arises like “what is law ?" Is it
written? where does it come from? Etc.
Legal
positivism is a theory which answers these questions.
during 19thcentury Natural Law Theory
was no more considered to be significant due to influence of scientific methods
upon social sciences including jurisprudenc.Jurist of this school emphasis on
the analysis of positive law means Law as it is not ought to be., this school
is known as ‘positivist school of jurisprudence ‘and their jurist came to be
called“positivists”or“analysts”.
Positivism means in the sense of law
emanating from a real source, which is obligatory, binding and sanction.
Positivist are focused on what is law, and on the legal theories.
The best way to describe about the
basic theories on natural law or positive law then :-If a beggar come to me and
need some food for eat, then if I ignore him/her to give some foods, after then
if I knocked that beggar person has died then whether should I be liable under
IPC; no because ignore to giving him/her some foods is morality because there
was not my intention to kill him/her. That is called morality.
And positivist will try to clarify
the reason behind then, as that beggar person could have been earned for save himself
by working and fooding,but he did not.
Positivist are Deserving through
analytical school which is known as analytical positivism also.
In the beginning of 19th century
Jeremy Bentham is the founder of analytical school of Law in jurisprudence. He
first time utilised the analytical method to study law in a piece of abstract
method of natural Law school.
Salmond says that analytical jurisprudence
as "systematic jurisprudence " where C.A Allen as imperative
jurisprudence. Jurists are treated the law as imperative for command emanating
from the state. The purpose of analytical jurisprudence is to analyse without
development of their historical origin.
Positivism has been generally
understood in the sense of law emanating from real source which is binding,
obligatory, and function. In jurisprudence 19th century is time of beginning of
the positivist movement.
Prof. H.L.A Hart
Professor Hart give some meaning of
positivism which are……
- Laws are command.
- The analysis legal concept in
following distnict from sociological and historical inquires.
- The law is actually
postium means "as it is" and separate from the law that
"ought to be".
- Pre-determined rules can deduce
decisions.
Positivists are prefer only pure fact
of law,logic is the main instrument.
JEREMY, BENTHAM (1748-1832) IMPERATIVE
THEORY
Bentham was the ambassador of
analytical method in England. who was the intellectual God Father of John
Austin, from whome Austin was developed the theory of analytical positivism.
Jeremy Bentham was observed analysis of structure was essential tremble to
reform.
Jeremy Bentham has divided the
jurisprudence into parts
- Expositorial :- means the
analysis of what the law is.
- Censorial :- finding out what
the law ought to be.
He was the greatest analytical
jurist.
JOHNAUSTIN (1790-1859)
John Austin was the father of english
jurisprudence and also a founder of analytical school.
Prof. C.k Allen thinks proper That Austin school as
a imperative school. The school founded by him called by various names"
analytical”, “positivism". Austin always opposed the theory of natural law,
his imperative theory of law distinguishes. That whether a rule is a legal rule
from it is a just rule. Austin says that positive law is the proper subject
matter through the study of jurisprudence, and also says that jurisprudence is
the general science of positive law.
Austin delivered his lecture in the London
University, which were published on his book "the province of
jurisprudence determined" where he told that the nature of law and its
proper bounds, where he also discuss the sources of law.
Austin divided the law into two parts
"properly" and "improperly" and law properly
is divided into two parts "law of God" means laws set by God for men,
another is "Human law" means law are made by man for man.
"laws in properly so
called" are divided into two parts "law by metaphor" and
"law by analogy".
LAW IS THE COMMAND OF THE SOVEREIGN
Austin says on his lectures on
jurisprudence that "law is the command of sovereign". He further said
positive law consists of comments set as General rules of conduct by a
sovereign to a member or members of the independent political, society, where
author of the law is supreme.
SOVEREIGN: - according to the Austin sovereign is the source of law
because sovereign is the supreme authority of any person or body of
persons who obey the bulk of the members of the political society. And also
says that nothing is law if that laws are not the sovereign command, so law is
rule which is imposed by sovereign and enforced by the sovereign, it is
the product of sovereign.
COMMAND:- Austin says in his command theory "the law is command
of sovereign which are imposing a duty which is enforceable by sanction,
Austin in his positive law has
classified the law in three characteristics.
- Law is a type of command.
- It is laid by political
sovereign.
- Enforceable by sanction.
Comment is the desire of the
sovereign authority that the subject send to for refrain from doing a
particular act otherwise some evil will be inflicted.
But all comments are not law just it
is only general command which compels the subjects to conduct.
SANCTION:- sanctions are logical part of the concept of law.
Austin means law must follows and
observed by people, only when there is a sanction behind it. Laws are consists
of the penalties when persons or person inflict the law of the orders of the
sovereign, then they will be punished for the violation of law.
The great jurist Hans kelsen (1881-1973)
who is the Australian jurist gave a theory to is positivism whose theory is
known as "pure theory of law" who says that law is a normative
science. Hans kelsen was a professor in Vienna University (Austria) so his pure
theory of law is also known as "Vienna school" and "Grundnorm
theory".
As the positivism approach professor
kelson says that law is a normative science but law norms may be distinguished
from science norms. Law is the knowledge of what the law ought to be laws do
not have a causal connection they are normative connections. According to him
law does not attempt to describe that what is occur by only describe certain
rules.
According to the Kelson and in his theory, theory of law must be distinguished from
law itself. A theory of law must be uniform and must be free from ethics, history,
politics, and sociology etc. It must be pure.
Kelson pure theory of law is based on
pyramidical structure of hierarchy of norm which derive their validity from the
basic norm which he termed as grundnorm. If any law which would violate the
Grundnorm theory then law will be unconstitutional.
The constitution of India may be
termed as grundnorm but India is se socialist society where law and models are
complement to each other. So this is not advantageous to this country.
Kelson rejects the Austin theory and
define that on sovereign may not be termed as songs of law, interpreted the
pure principle which is necessary to achieve the source of law can be traced.
The aimed of his theory as of normative science, is to reduce chaos and
multiplicity to unity.
Law is normative not a natural
science in this theory kelson separates the law from morality.
Naturalism
In the respondents term natural law
means some rules and principles which are nominated some supreme sources other
than any political or wordly authority. Natural law known as higher law or law
of nature, moral law, Law of God and written law.
Moral principles based on the
essential nature of the universe and discovered by natural reason.
There is no single theory about the
natural law many jurist has given their opinions
When the natural law used in a
general sense then we can only assume that loves which are coming from nature.
*According to Aristotle and Christian
Thomasius :- law is the the " unwritten law "(jus no scriptum)
*According to Grotius and Gentili, natural
law consist of the 'principles of the mortality'
*Hobbes
and Locke:- natural law was
concerned rather with man's rights, and sought to derive from the characteristics
of human nature certain natural or fundamental rights.
Some jurist and philosopher has
define about natural law in many definitions and by theories,
FRIEDMANN: -
that natural law has used many different times by many different peoples.
Some definitions and ancient theories of jurist of the Greek
period about natural law
Greeks are the
first propounders of natural law, they were thought that "Nature"
means entire universe. Some Greeks who
gave the conception of natural law that universal law where some how rules
principles are equal for all and which is binding on all peoples. Growth of
plants movements heavenly e this at the greeks times natural law was both a way
of living as well as thinking.
Philosophers view on natural law (Greek theory)
Secretes says that like natural
physical law there is a natural moral law, and also says that man has a
"inside" and this inside elicit him what is" bad " or
"good" and these badness for goodness aware him or makes him know the
absolute moral rules. By this "insight" man can judge the law,
socrates did not say that if the positive law is not in conformity with moral
law it would be disobeyed. He preferred himself to drink poison is obedience to
law then run away from the prison his theory was a plea for security and
stability.
Aristotle says:-
Man is a part of nature, and man is part of creatures of God. He possesses all
active reason he can shape his will.
Further Aristotle says that Universal
Law or Natural law set by nature, which renders in unchanging and which is
valid for all communities. Natural justice is that which is some force in every
where.
According to Aristotle Law is the
body of rules, which judges and people's are should follow, And it is different
from the constitution. Law should be reformed rather than broken.
Stoics view
People or a group of people of Greek
thinkers called popularised a maxim " Live according to nature ".
Stoics views are that natural law as
only a manifestation of the divine reason in man.
MEDIEVAL THEORIES
IN the middle age,some philosophers (
catholic and theologians ) were gave a new theory on the natural law.
St. Augastine was views that Natural
law was the divine law and which was superior to all the laws. Divine laws are
based on Nature where human made laws are custom.
According to Gierke, medieval period Christian theology were entered into
two fundamental principles.
?
Unity
derived from God, which are belongs from one God, One Faith, One
Church.
?
Both
divine and man made law as a part of universe.
Grotius and Rousseau views on Natural Law
Grotius is the father of
international law. Who says that there is no sovereign to control the relation
of nation but nature can control the relation between the notions.
Grotius says
that Nature is discoverable by man's reason, and it is the duty of
sovereign to save the citizens because sovereign was given the power for that
purpose,
Grotius claims that nations were
still is a state of nature, so bound by the natural law and all man desires
peaceful society because man is social being.
Rousseau
Rousseau is the father of
sociological school in jurisprudence, who has define the relation between the
society with us, even he says in natural law.Rousseau has gave a new
interpretation on social contract and natural law, According to the Rousseau
before the social contract man was berry happy and free ,and there were
equality among them, but now after the social contract mans are not happy, they
are preservation of their rights, freedoms, equality. Rousseau gave the name of
this system "General Will".
NATURAL LAW IN INDIAN PERSPECTIVE
IN Indian perspective a number of
legal principles is embodied in our Indian Constitution, which generates
certain basic fundamental rights to the citizens. And some general principles
have been borrowed from the England. Many of them are based on natural law,
like quasi contract, justice. The supreme court can set aside the orders of
high courts if natural justice are violates. The principle of natural justice
has been in corporated in article 311, which says nor civil servant can be
removed or dismissed or reduce his rank until he has been given reasonable
opportunity to showing cause against the action proposed to be taken against
him.
Maneka Gandhi vs. Union of India AIR 1978 SC 597
IN this case laws must have ethical
and systematic criteria, otherwise it would not be regarded as Law. And
if peoples got complete and absolute liberty without any type of social
control then result will be wreck and that will be over through, so, liberty
always should be limited.
A.K Gopalan vs. State of Madra AIR 1951 SC 21
Justice patanjali Shastri- observed man desires to do many thing, but in a civil
society man's desires have to be controlled, and regulated with the exercise of
similar desire by other individuals.
In Makena Gandhi case held that, any person depriving of his life or
personal liberty must be just fair and reasonable Art 21 Indian Constitution.
Article 19(6) also declares about
" Reasonable Restrictions "the word " Reasonable "
means intelligent.
Chintamani Rao vs. state of H.P AIR 1951 SC 118
Term Reasonable Restriction in art.
19(6) signify that limitation imposed on a person for the enjoyment of his
right should not be excessive nature, beyond what is actually required in the
interest of the peoples.
STATE OF MADRAS VS. V.G RAO AIR 1951 SC 196
There is not exact pattern of
Reasonableness that can be laid down for all cases.
NAREDRA KUMAR VS. UNION OF INDIA AIR 1960 SC 430
Restriction may amount to prohibition
under certain circumstances.
POSITIVIST VS. NATURALIST WITH HART AND FULLER CONTROVERSY
Naturalist and positivist are not an
issue, just they have been operating in two different frames.
H.L.A Hart, in
positivism arguing and based it for need a clear cut method for identifying the
Law.
Naturalist think that mainly in a
continuum and positivist are present frames.
According to the naturalist
separation of law from morals is not possible, by positivist it possible.
Hart, thinks
that about continuety, morality is essential but that should be clear cut and
identifying laws.
Fuller,
morality and concept of law upon the time from of reference, morality
externally and internally related to law, which takes account of implications
of continuety, and concepts are operating the present time frame.
Positivist say that there are no
limits, but naturalist says limits are define by principles of morality and by
natural Justice.
Hart, views
that law must have a minimum moral quality, and he observed that law and
morality are inter connected.
Hart, argues
that a legal system must give a men minimum protection of life and property but
he does not maintain the man's right to their life. Where limits and property
are also protected by law.
Fuller,
suggest that if any formal rule could examine then it strike some moral
principle
So, it is also clear that total separation of "is" and
"ought" is not possible.
Actually law is, what it's makers
thinks it ought to be.
It undeniable, that
moral,social,political and some other factors make them, what and where they
are so the judge will declare the rule, what it is and what ought to be.
In this point
try to analysis a situation positivism to naturalism in a strict sense, which
will be very easy to understand for us the issue at large. If we assume that a
situation has create where a person made a judge without any legal training.
Charles Fried assistant professor of Law, Harvard Law School published it in
Harvard law review in 1964. This scenario is discussed from an article titled:-
“Two concept of interest reflection of supreme courts balancing test “is that
judge would ignored the Law? Truth is that the article said that the system
will go on, but the judge will underperform with the collegiums in a
comparison, where the judge will be reflect his position with basic natural
assumption. But it is not that the judge will be compared with those who having
knowledge but even without compared with knowledgeable persons the judge knows
that he having a crucial role playing in a legal argumentative situation which
is highly structured. Hence this type of various illustrations make us
retrospect. So this article clarifying that whether do we obey Law behind it’s
sanction or just moral reasoning of all human about judging what is good or
bad. So there has Both parties have a
tendency to characterize their legal position as more 'positive', that is, the
law which is so and should not allow any deviation, or should maintain the
notion that the law is more 'natural'.
', That is, leaning more towards the humanitarian approach and the ideal
code that moves people forward. Positivism and naturalism are not only
comparison but state the impotant truth also.
Point Of View:-
I have discussed in the above about the main features, definations, and debates
between the "Naturalism and Positivsm" where I have faced some
questions,that :- which on is the most important between the both and which one
should we obey in the matter of
"why should we obey the law Natuaism and Positivsm" ?
I collected some data from the
internet (website) and from books which I have read out, Thus I would like to
choose the Positivism.
I have found that Positivism means
"As it is" and "Not ought to be" which is developed by the
positivists. Positivism means "A philosophical system recognised only that
which can be scientifically verified or which is capable of logical or
mathematical proof ".
Positivism is an important role in
the society where Naturalism is the creature of God, and the morality. Where
positivists separate the pure law from the morality but every natural law is
not appropriate for the society because when Society needs law will perform,
hence it should not be inclined to disobey the Natural Law. Positivism is the
study of law brought many benefits and promoted the development in study about
on the Society. Positivista are criticised some way of Natural objectives.
Positivism provides to the people a
way to avoid speculation but to make a scientific rational prediction through
the study and this method is used more nad more in the study of human society.
Positivism considered meaningless and
reject the other ways of knowing, such as theology, metaphysics, intuition or
introspection.
The positivists thesis does not say
that laws merit are unintelligible, unimportant or peripheral to the philosophy
of Law.
Conclusion
Positivism playing the important role
in our society find out that, naturalism is the creature of God and positivism
is the identifying as pure Law which are hides behind the nature, positivist
are separate the law from morality. Every natural law are not appropriate for
the society, but when the society needs then Law will perform as per the needs
of society. We should follow the both naturalism and positivism because
sometime nature is also a source of law.
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