Positive Law vs. Natural Law vs. Social Compact

I’ve been doing some reading about positive law, natural law and the social compact/contract for one of my legal philosophy classes. Though I think I have it down, I just wanted to write my thoughts and see if people thought they were correct. (Writing my thoughts like this also helps me remember it.) Also, if anyone wants to engage in a debate about the three or any of the people listed, that would be great, too. :smiley:

Positive Law

Positive law theory revolves around the idea that morals and the law are two separate and distinct things. Though laws may be based on morals, they don’t have to be. In positive law, even though a law may be considered “bad” or “immoral,” the stability of the law is more important than fixing a bad law.

Bentham was an advocate of positive law by arguing that utilitarianism was the best way to go. He had something called command theory (which I’m not too clear on) and argued that there should be a clear separation of laws and morals.

Austin was like Bentham, but argued for an even bigger separation between morals and laws.

Hart said command theory was a joke but otherwise agreed with Bentham.

Natural Law

Natural law theory argues that all laws come from reason (and there are those who argue that reason comes from God). Natural law states that the laws should be based on the natural state of things (i.e. that people are created equal, deserving of human rights, etc).

Cicero argued that natural law came from reason and that reason came from God.

Aquinas argued similarly but further suggested that natural law should supercede any law that didn’t fit in with the natural law.

** Social Compact/contract**

Social compact theory argues that people are naturally in a state of chaos (or at least wild) and therefore need to sacrifice some freedom to maintain order. I.e,. people banded together for mutual help and safety (to protect their own interests).

Grotius lived during the 30 years war and stated that positive law should be based on natural law. Grotius is considered the father of international law because he believed that people should form pacts for their mutual interests.

Hobbes argued that men were brutish and that we need to make sure that society is stable and provides order. Whatever the government says should be followed. Not a natural law thinker- totally positive law.

Locke thought state of nature was ok and thought that everyone had a natural right to life liberty and property and so people need a government to protect those ideals.

Rousseau thought men were ignorant but free. People should give up that freedom for the benefits of government. Thinks government has corrupted government. But government should reflect the general will of the people.

Kant thought that something is either good or bad – and people know it. If I steal, and everyone steals, is that ok? Probably not. Basically a natural law thinker – everyone knows what is right or wrong.
I realize that this was a quick summary of each, but I don’t feel like writing a book on each of them (as they are all deserving of it). If anyone has any comments, corrections, or any advice about a comparison of any of the people or the theories, that would be great! Thanks.

Damn its been awhile since my jurisprudence and political philosophy classes…

If i remember right you are correct. Legal positivism is the theory that morality and law are not necessarily connected. Think of it as a legislation of will based on social circumstance. (bentham/austin/hobbes)
Natural law on the other hand I believe have 2 theories.
One theory is that morality and the laws are necessarily connected. The act of legislation is in tune with the natural state of things.
Another theory states that a law is considered “right” insofar as it conforms to the natural law. (this is a more narrow view/and begs the question if you ask me)

A good example might be the “liquids on a plane” rule. We know what we are carrying is harmless. But, we don’t want to turn every TSA agent into a chemist (there’s a thought) trained to recognize every possible threatening compund and have to separate safe from dangerous materials. they can’t taste every water bottle, or stir every coffe to see if it’s hiding a container, or sniff every hair gel for nitrate odors (are there such?). It’s simpler to just say “no fluids”. Bad rules, most annoying and disruptive, but most practical.

But neither one of those examples are based on the natural state-the former is obviously untrue, and the latter is a desire not shared by all.

Some thoughts -

Morals and law are distinct. Morals should tell you not to tell lies, or to be polite to others - but generally, you are free to fib and insult people all you want. We avoid using coercive force to impose some behaviour because part of the value of that behaviour is from being voluntary.

I’ll go more with the social compact. We want laws (IIRC, the Brtish model) for peace, order and good government.

Robert Heinlein wrote a novelette (Coventry?) about some idealist exiled into a section of the country reserved for those who don’t respect nanny-state laws, only to find it was run more like the Mafia than like a collective of independent “noble savage” anarchists. the moral of course was that the ungoverned human condition was more like tribal Lebanon during its civil war, than like the grand frontier of America (which never was, either).