Authored By: Carla Anthony
University of South Africa
Among the most enduring and pivotal debates in the history of legal philosophy the debate between Natural Law and Legal Positivism, centering on the relationship between law and morality is one of the fundamental questions in legal philosophy. It raises the question of whether law can and should enforce moral convictions by transforming them into legal rules.1In the history of philosophy this question has been answered in two ways.
Natural law
Natural law stems from the Greeks, namely the ancient Greek philosophers Plato and Aristotle.2 This school of thought operates from the premise that there is an inherent connection between law and morality, and that if a legal rule contradicts moral rules, the law must be considered invalid.3 One of the core principles of are that natural law thinkers are of the opinion that the validity of law is dependent on its moral content.4
Natural law thinkers say that reality consists of two parts: an eternal, unchanging, and universal part often referred to as an Ideal, Form or religious rule which cannot be seen, touched or observed (metaphysical) and a temporary, changing and local part.5 They believe that natural law serves as a yardstick by which human law can be judged.6 They contend that the metaphysical realm is the perfect example because although we cannot see it we can only know by using our brains which can be applied to justice as well, it cannot be seen but we can tell just from unjust law by using our logic and reasoning.7
Legal Positivism
This school of thought is in direct opposition to natural law, rejecting its metaphysical foundations. Positivists believe that when law is made by a competent legislature it is valid thus it is not dependent on its moral content.8 They reject the idea of a metaphysical realm and focus more on the world we can experience.9 Positivists contend that facts and values should be separated from each other. Basically saying that justice should be serves/determined based on the facts of the case and not logic or moral rules. Law is viewed as a social product or convention, in other words it is man-made, born from agreements people have made with one another.10
The profound practical implications of this conflict are starkly illustrated by a pronouncement made by Nelson Mandela during his first court statement in Pretoria, 1962, who explicitly articulated the agonizing choice faced by conscientious individuals when confronted by an immoral and unjust legal system in. In his statement Mandela states,
“Your Worship, I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. This is not a conflict peculiar to this country. The conflict arises for men of conscience, for men who think and who feel deeply in every country. Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law, as a protest against a nuclear weapons policy being followed by his own government. For him, his duty to the public, his belief in the morality of the essential rightness of the cause for which he stood, rose superior to this high respect for the law. He could not do other than to oppose the law and to suffer the consequences for it. Nor can I. Nor can many Africans in this country. The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written and designed by the Nationalist government, is a law which, in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it, and that we must attempt to alter it.”
The pronouncement made by Nelson Mandela highlights a long-standing debate in legal philosophy regarding the relationship between law and morality. The conflict Mandela identifies in his statement, “conscience on the one hand and the law on the other” is exactly the tension explored by the two main opposing schools of thought in this debate.
Mandela’s pronouncement highlights that this debate is not unique to South African but arises “for men of conscience” in every country, he cites the conviction of Earl Russell in Britain, “following his conscience in defiance of the law” to put emphasis on his statement. Furthermore, Mandela’s posits, “He could not do other than to oppose the law and to suffer the consequences for it. Nor can I. Nor can many Africans in this country” this reflects a refusal to simply just accept the prevailing legal order and not challenge authority and ideas beyond the boundaries of established law.
Mandela refers to the experience of the “thinking African in this country” this perspective is consonant with the principles of the African Legal Philosophy approach which emphasis the integration of law and morality, rejecting the Western positivist separation of law and morality. Mandela’s statement essentially rejects the notion of legal positivism, instead advocating for laws to be evaluated based on moral standards of conscience and justice. This stance positions the fight against apartheid laws within the framework of natural law, emphasizing the necessity of actively opposing an unjust legal system.
The tension between these two philosophies highlights a critical vulnerability in legal systems, particularly those enforcing oppressive regimes. The battle between Natural Law and Legal Positivism is far from abstract; it is a critical determinant of legal resistance and political legitimacy. Natural Law provides the moral vocabulary for revolution and protest, empowering individuals to reject regimes that produce “immoral, unjust, and intolerable” laws by appealing to a higher authority of conscience and morality, as demonstrated powerfully by Nelson Mandela. Legal Positivism, conversely, seeks stability and certainty by separating law from morality, thereby ensuring that political disagreements over justice do not automatically undermine the structure of the legal system.
The dichotomy between these two schools of thought presents valid arguments, underscoring the complexity of the issue. Given the inherent diversity in human perspectives and experiences, it is likely that debates surrounding the interplay between morality and law will persist. Nonetheless, it is essential to strike a balance between the two, integrating moral principles with legal frameworks to foster a democratic society that upholds justice while embodying the spirit of Ubuntu. By embracing this nuanced approach, we can cultivate a more comprehensive and inclusive understanding of justice that acknowledges the intricate relationships between individual rights, communal values, and the rule of law.
Reference(S):
1Irma J Kroeze, Legal Philosophy Study Guide (University of South Africa 2017) 61.
2 Kroeze, Legal Philosophy Study Guide 65.
3 Kroeze, Legal Philosophy Study Guide 61.
4 Kroeze, Legal Philosophy Study Guide 61.
5 Kroeze, Legal Philosophy Study Guide 63.
6 Kroeze, Legal Philosophy Study Guide 63.
7 Kroeze, Legal Philosophy Study Guide 65.
8 Kroeze, Legal Philosophy Study Guide 61.
9 Kroeze, Legal Philosophy Study Guide 77.
10 Kroeze, Legal Philosophy Study Guide 81.
