Part E (Application) Flashcards
Section 2: Both positive and natural law theorists would agree that the Salem Witch Trials were an example of the misuse of the legal system. However, if the law were solely based on either one theory, which one would create the greater legal environment for this miscarriage of Justice and why? (Outline answer)
Both positive and natural law theorists would agree that the Salem Witch Trials were a huge misuse of the legal system, but if the law were based entirely on one theory, positive law would have created a much greater environment for this kind of injustice. Positive law is all about following laws because they are officially made by the government, without questioning whether they are fair or moral. In the Salem Witch Trials, laws allowing spectral evidence and harsh punishments for witchcraft were enforced simply because they existed, even though they were based on fear and superstition. Since positive law doesn’t require laws to be morally right—just legally enacted—judges and officials had no reason to challenge them. On the other hand, natural law argues that laws should be based on morality and basic human rights. While natural law could have still been used to justify the trials if people at the time truly believed witchcraft was a real threat, it also provides a way to challenge unfair laws by appealing to justice and reason. If Salem’s legal system had been built on natural law, people would have had more room to argue that executing innocent people based on little to no evidence was completely unjust. But under positive law, once a rule was in place, it had to be followed no matter what, which made it much easier for these wrongful convictions to happen. Since positive law focuses more on authority than fairness, it allows injustices like the Salem Witch Trials to happen without question, making it the theory that would have enabled this miscarriage of justice the most.
Section 1: Describe in detail the origins of natural and positive law. How did natural law originate and outline the contributions made by Plato Aristotle Cicero and St Thomas Aquinas. Also, state the changes in natural law that occur during the middle ages. Furthermore fully describe the origins of positive law and the contributions made by Jeremy Bentham and John Austin:
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Section 2 Example using the Red Scare 1950’s example (Outline answer)
Both positive and natural law theorists would agree that McCarthyism and the mass accusations of communism in the 1950s were a misuse of the legal system, but if the law were based entirely on one theory, positive law would have created a much greater environment for this kind of injustice. Positive law is focused on enforcing laws simply because they are created by the government, without questioning their morality or fairness. During the Red Scare, laws and policies like the Smith Act and loyalty oaths were put in place to target suspected communists, and because they were legally enacted, they were strictly followed—even when they violated people’s rights. Courts and lawmakers upheld these laws without challenging whether they were just, leading to blacklists, wrongful imprisonments, and ruined reputations based on weak or nonexistent evidence. In contrast, natural law argues that laws should be based on morality, fairness, and fundamental human rights. If the legal system had been built on natural law, there would have been more opportunity to push back against McCarthyism by arguing that punishing people for their political beliefs violated basic principles of justice and freedom. However, in a strictly positivist system, once a law was created, it was considered valid and had to be followed, even if it led to innocent people being harmed. Since positive law prioritizes legal authority over moral reasoning, it allows injustices like McCarthyism to spread unchecked, making it the theory that would have enabled this miscarriage of justice the most.
