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Summary Natural Law and Positivism
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Summaries and Notes for all the essay and other questions in the exam scope created with past paper memos for LJUR4814 - Jurisprudence.
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PART A=UNIT 1.6NATURAL LAW AND POSITIVISM
Define the concepts of natural law and positive law and explain
these concepts by means of the Speluncean Explorers Case. The
facts of the mentioned case must only be referred to insofar as
they explain the mentioned concepts. [15]
Natural Law: (i) laws that exist inherently (in “nature”) and that define for man what
is right; (1) (ii) laws that are accessible to all and are discovered by reason; (1) (iii)
laws that apply to all men at all times; (1) and (iv) man-made laws are authoritative
only insofar as they are derivable from the laws of nature.(1)
Positive Law: (i) written law; (1) (ii)morality is not relevant; (1) (iii) law can change
over time. (1)
Judge Foster: The law of nature is relevant where co-existence is impossible (in
other words, where there is a chaotic state of affairs). This was the position when
the divers were trapped in the cave. (1) The natural law was also applicable
because the divers were separated by a layer of rock from the land and therefore
they were separated from the positive law of the land. (1) Natural law tells us that it
is better to save 4 divers than have all 5 divers die. This is what the reasonable
thing is to do. (1) Natural law improves on the weaknesses of the positive law, as in
this case where the positive law did not provide a remedy for persons in the position
of the divers. (1) Persons will, according to the natural law, always want to protect
themselves when their lives are threatened and the positive law may not change
this understanding. (1) It could therefore not have been the intention of the
legislature to make the law applicable to the divers whose lives were threatened.
(1) In a state of nature persons can agree by means of the universal validity of
consensus, to establish their own rules. (1)
Judge Tatting: How does one determine when the natural law is applicable and
when it is not? – there is no precise criteria in this regard. (1) How can the law of
contract be more important than murder? (1) Following the natural law leads to
various interpretations pertaining to whether something is right or wrong and these
can differ from one another. (1) The student can give an example in this regard. (1)
Judge Keen: A court does not concern itself with morality. (1) The Court’s function is
to apply the law. (1) Moral concerns lead to subjective or personal criteria. (1)
Judge Handy: One must approach this scenario from the context of popular choice,
namely that the community should be the measure as to what the required
outcome should be, just as a good government is a government that rules according
to the feelings and conceptions of the people over which it rules. (1) This can be
interpreted as supporting the natural law approach where the community reflects
universal reason (which is a safer approach than following the views of a judge or
smaller group of individuals). (1) On the other hand, this can be interpreted as
1
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