Natural Law Theory And Legal Positivism Research Paper

Law Theory vs. Legal Positivism
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January 26, 2017
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According to USLegal.com (n.d.), Legal theory “refers to the principle under which a litigant proceeds, or on which a litigant bases its claims or defenses in a case”. This implies that the principles observed in legal theory are commonly upheld by the rule of law and its binding legal force. On the other hand, Legal postivism refers to “a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed” CITATION Intnd \l 1033 (Internet Encyclopedia of Philosophy, n.d.). Legal positivism is very much different from the preceding one, for the fact that it does not question a law based on an underlying moral code or social norms. Rather, the main focus of Legal positivism is the way how laws are created, codified, amended, and even re-created CITATION Intnd \l 1033 (Internet Encyclopedia of Philosophy, n.d.). In most cases, the contents of Natural Legal theory contradicts with the very nature of Legal positivism. This is due to their difference in approaching “morality” within their principles. While Legal theory believes that the codes of morality have an inherent connection in creating laws, Legal Positivism does not CITATION USA13 \l 1033 (US Air Force Academy, 2013).[all of which, are considered as “socially constructed”]
In today’s society, most (if not every) constitutions around the world are patterned from the basics of Natural law theory. As said earlier, this is the idea that the codes of morality are and must be closely tied to the laws created. Some of the most common examples of this are laws, patterned from religious doctrines, which incarcerates or sanctions those who kill, steal, and commit adultery among others. Thus, despite the ongoing debate as to which of these are much needed by our society today, Natural Law theory gives the best account of our society’s law in the contemporary period.[Or even religion, traditions, social norms, etc.]
As stated earlier, it is fairly admissible that in almost every case Natural Law Theory prevails. Under it an act of murder would definitely be sanctioned to either imprisonment or death, which is not the case if Legal positivism prevails otherwise. However, cases in which Legal positivism prevailed also exist. One of the most famous example is of the Lotus Case of 1927. The Lotus Case is one of the most popular cases that dealt with a territorial dispute due to an issue of jurisdiction of two countries when it comes to implementing their own laws. More specifically, the case dealt with a collision accident between two vessels (lotus and Boz-Kurt) where the latter one sank and led to the death of eight Turkish Nationals CITATION Cot07 \l 1033 (Cottier, 2007). Due to the death of their own people, the state of Turkey arrested and imprisoned “Demons” the captain of the French vessel and sentenced him to 80 days of imprisonment and a corresponding fine. However, this act was perceived with adverse reactions from the French since International Law (which is based from Natural Law Theory) states that no country should exercise its jurisdictions outside of their own territory CITATION Gun08 \l 1033 (Gunaratne, 2008). This case was then taken to the Permanent Court of International Justice (PCIJ) which resulted with the decision that “Turkey did not violate the International Law when it instituted charges to Demons” CITATION Gun08 \l 1033 (Gunaratne, 2008).[Lotus Case (Turkey v. France)] [French vessel – Lotus – and a Turkish vessel – Boz-Kourt]
The example stated above was just one of the cases in which a positivist approach prevailed in a case. However, ca...