Positivism and Naturalism

Question 1

What is the Overlap Thesis and which theory does it apply to?

Answer 1

In Natural Law theory, it is the claim that the law is based on the morality of the action. Law and morality do not overlap.

Question 2

In what way does Aristotle support Natural Law?

Answer 2

He believed that the best law should rule not the best person should rule a city. The law had a share in morality (eternal divine wisdom).

Question 3

In what way does Cicero (‘De Legibus’) support Natural Law?

Answer 3

“true law is right reason in accordance with nature”
The law is the same in Rome, Athens etc.
Positive human laws must be judged by a moral standard

Question 4

What is the Pedigree Thesis and which theory does it apply to?

Answer 4

In Legal Positivism, it is the claim that the validity of a law depends on social facts like who enacted it, not moral facts or its own merits.

Question 5

Which figures held an Imperativist Positivist position?

Answer 5

Bentham and John Austin

Question 6

What survives of legal positivism in modern legal studies?

Answer 6

The idea that legal theory must be rooted in some account of the political system

Question 7

What are the weaknesses of legal positivism?

Answer 7

• Not all laws are imperative- eg. allowing marriage
• Not all societies have one sovereign commander
• It unduly ignores morality: law’s ability to foster human well-being, securing human rights etc

Question 8

Describe Hart’s distinction between Primary and Secondary Laws

Answer 8

Primary: affect all people
Secondary: affect the process of legislation itself