Positive law seen as preferable to naked force by v7166R


									Natural Law and Positive Law – some thoughts

In his work The Leviathan, 17th Century English philosopher, Thomas Hobbes saw
positive law as preferable to naked force. In principle, Hobbes saw even arbitrary laws
created by the Sovereign as preferable to the state of nature, which he saw life as
“solitary, poor, nasty, brutish and short”. There is a danger of course that the sovereign
law makers will use the law to legitimize their own use of naked force.

While Hobbes saw positive law as preferable to naked force, he saw natural law as the
appropriate basis upon which positive law should be founded. The content of natural law
has been over time a conception of fundamental divine or rational human values. Today,
these values affect positive law by determining or influencing the content of positive law,
that is, the substantive and procedural rules by which societies are governed. For
example, the intentional taking of another’s life, with some exceptions, appears to be
prohibited by the natural law and the positive law of many human societies.

Values of natural law not only help form the content of positive law, they are used to
legitimize, change, and interpret positive law.

Natural law itself is subject to change. In Christendom of the Middle Ages, a “fixed
universe” philosophy dictated a person’s place in the universe, including society.
Everyone had his or her own place in society as dictated by God. This deterred persons
from seeking to rise above their station in life as determined by God.

The fixed universe in which the sun was believed to move round the earth was challenged
by philosopher/mathematician Galileo Galilei who challenged the fixed universe theory
favoured by those in power. Evidently, such a challenge threatened those in power and
Galileo was committed to house arrest. His written works were confined to Latin to
ensure that only clerics would be able to read them.

In the late 18th Century philosophers such as Rousseau and Locke challenged the fixed
order pronounced by the Roman Catholic Church and monarchs who promoted ideas of
the divine right to rule. Rousseau’s statement “Man is born free but is everywhere in
chains” was a serious challenge to the status quo. This sowed the seeds of a change in
natural law societal beliefs about such concepts as the divine right of kings. Revolutions
that occurred in 18th Century America, France, and England were legitimized by new
ideas of the social contract and accountability of rulers to the people.

At the beginning of the 20th Century, the educational segregation of black and white
children in the USA remained constitutionally permissible. By the end of the 1960s, such
segregation was prohibited even though no constitutional change occurred. What did
occur is that judges interpreted the Constitution in a manner more consistent with
contemporary views of humanity and of human rights.

Natural law still challenges the legitimacy of some rules made by governments. While the
positive laws of Nazi Germany condoned and even required government officials and

citizens to dispossess, imprison, and execute Jews and others deemed racially and
otherwise “inferior” beings, many who applied such laws were later convicted under the
natural law concept of “crimes against humanity”.

The influence of the natural law concept is evident today in Canada in its Constitution,
including the Canadian Charter of Rights and Freedoms, where positive law passed by
Parliament or by provincial legislatures can be declared by the courts to be of no legal
force because they undermine rights or freedoms protected by the Charter.

Controversy still surrounds positive law and natural law. Some citizens believe that
abortion amounts to the unlawful killing of a human being. Others disagree and support
abortions under certain circumstances. Some citizens support euthanasia as a choice that
should be available to a person who wants to die. Others oppose this. What most people
in Canada agree upon is that such matters can be legitimately and openly debated.

See http://www.philosophypages.com/ph/hobb.htm



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