Early Positivists: Bentham, Austin and the “Command” Thesis [No. 86 LECTURE]

Summary

This lecture explores the fundamental debate between natural law theory and legal positivism in jurisprudence. The natural law perspective argues that law must align with justice and the common good to be effective and maintain social order. In contrast, legal positivism separates the existence of law from moral questions, viewing justice as a matter of separate philosophical inquiry. Through analogies to objects with a 'telos' (purpose), the natural law theorists assert that the structure and moral quality of law are inseparable, while positivists focus solely on the law's formal existence.

Takeaways

• 😀 The debate between natural law theory and legal positivism centers on the connection between law and morality.
• 😀 Natural law advocates argue that when a law is unjust, people are less inclined to obey it, which affects social order.
• 😀 Legal positivists focus on law as a system of rules, regardless of whether the law is just or unjust.
• 😀 The natural lawyer believes that law must align with moral principles and realize the common good, not just be a set of rules.
• 😀 According to natural law theory, law has a telos (purpose), similar to the purpose of a hammer, which is to serve a specific function.
• 😀 A 'bad' law is one that fails to fulfill its moral purpose, much like a hammer that can't pound nails is considered a bad hammer.
• 😀 Natural law theorists claim that the questions of justice and the structure of law cannot be separated.
• 😀 Legal positivists assert that the justice of a law is a matter of moral philosophy, separate from its legal structure.
• 😀 The natural law perspective holds that law must be ordered in a way that upholds the common good and the moral order of society.
• 😀 The differences between natural law and legal positivism shape discussions in jurisprudence and how law is taught in academic settings.
• 😀 The No. 86 Lecture series encourages reflection on these debates, emphasizing the importance of critical thinking and discussion in law.

Q & A

What is the central debate between natural law theory and legal positivism discussed in the transcript?

The central debate is about the nature of law and its relationship with morality. Natural law theory argues that law must align with moral principles and serve a higher purpose, such as justice and the common good. Legal positivism, on the other hand, holds that law is simply a set of rules created by authorities, and its legitimacy is not tied to its moral or ethical value.

How do natural lawyers view unjust laws, according to the transcript?

Natural lawyers argue that when a law is grossly unjust, people are less likely to obey it. They suggest that people will avoid or try to sidestep the obligations of such laws, which reveals a flaw in the law’s structure or purpose. This reflects the natural lawyer's belief that law should serve a moral or common good.

What is the positivist's response to the natural lawyer's critique of unjust laws?

The positivist would argue that the question of whether a law is just or unjust belongs to the realm of moral philosophy, not legal theory. They would assert that the structure of law is separate from its moral content, meaning the law's validity does not depend on its justice.

What is meant by the concept of 'telos' in relation to law in the transcript?

Telos refers to the inherent purpose or end goal of something. In the context of law, the natural lawyer argues that law has a telos to promote justice and the common good. A law that fails to fulfill this purpose is considered a 'bad' law, just as a hammer that cannot pound nails is a 'bad' hammer.

How does the analogy of the hammer help illustrate the natural law argument?

The analogy of the hammer is used to explain that just as a hammer’s purpose is to pound nails, the purpose of law is to promote justice and serve the common good. A hammer that doesn't fulfill its purpose is considered a bad hammer, and similarly, a law that doesn't fulfill its purpose is seen as a bad law.

What is the natural law critique of the positivist view that law and morality are separate?

The natural law critique is that law cannot be defined solely by its structure or the fact that it has been posited. Law must also fulfill certain moral purposes, such as promoting justice. According to natural law, the structure and morality of law are interconnected, and ignoring this relationship leads to a limited understanding of what law truly is.

What does the transcript suggest about the relationship between law and social order?

The transcript suggests that when a law breaks down in terms of its justice or purpose, social order also breaks down. The failure of law to achieve justice and the common good has consequences beyond legal theory, affecting societal norms and behaviors.

How does the debate between natural law and legal positivism relate to contemporary legal systems?

This debate is relevant to contemporary legal systems because it touches on foundational questions about the role of law in society. Should law be purely a set of rules enforced by the state, as positivists argue? Or should it also be aligned with moral principles and a higher sense of justice, as natural law theorists suggest?

What does the speaker mean when they say that natural lawyers believe law has a 'built-in telos'?

The phrase 'built-in telos' refers to the idea that law inherently has a purpose or goal, which is to ensure justice and promote the common good. Natural lawyers believe that law is not just a set of commands but has a deeper moral and social function that must be realized in its structure and practice.

What is the purpose of the No. 86 Lecture series as outlined in the transcript?

The No. 86 Lecture series aims to foster discussion and critical reflection on key legal concepts such as federalism, separation of powers, and the judiciary. It encourages students and listeners to think critically about how these topics are taught and understood in law schools and society at large.