Explain and differentiate between positivism and natural law and how these schools of thoughts perceived the meaning, function and purpose of law.
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Positivism is a law that is made by human beings. The note that the term positive does not mean “good” in this context, but “man-made” or “posited” (cf. posit). More specifically, positive law may be characterized as “[l]aw actually and specifically enacted or adopted by proper authority for the government of an organized jural society. Body of man-made laws consisting of codes, regulations, and statutes enacted or imposed within a political entity such as a state or nation.
Definition of natural law a law whose content is set by nature and that therefore has validity everywhere. Natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Idea of perfect law based on equity, fairness, and reason, by which all man-made laws (see positive law) are to be measured and to which they must (as closely as possible) conform. Natural law is derived from the concept that the entire universe is governed by cosmic laws on which human conduct should be based, and which can be deduced through reasoning and the moral sense of what is right or wrong.
law and justice are merely man-made conventions and that no action can be deemed to be right or wrong unless a particular populace, through its customs or positive laws, declares that it is right or wrong. Positivists espouse relativism and subjectivism with respect to what is proper or improper. Natural law opposes the idea that moral law is relative, subjective, and changeable. Natural law provides a criterion by which positive laws can be judged. If the law of the state runs counter to natural law, it is held to be unjust. Positive law and normative justice are not synonymous. If justice is pertinent then natural law is pertinent.
meaning “man-made law”, not “good law”; cf. posit) of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law
Contrast this with natural law which are inherent rights, not conferred by act of legislation.
There is no inherent or necessary connection between the validity conditions of law and ethics or morality. Positivism sharply separates law and morality
Natural law is to discover or assert the prior premises of law
The Separation Thesis, however, has often been overstated. It is sometimes thought that Natural Law asserts, and Legal Positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content.
Function of law:
Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law
Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated. Legislated laws are sometimes referred to as aa‚¬A“positive lawsaa‚¬? in the framework of natural law theory, to make a clear distinction between natural and social laws. Natural law theory has heavily influenced the laws and governments of many nations, including England and the United States, and it is also reflected in publications like the Universal Declaration of Human Rights.
In England, for example, members of parliament may appeal to natural law theory in settling disputes, in the form of the Fundamental Laws of England, a series of basic rights set out by William Blackstone in the 1760s.
Natural law has nothing to do with nature. It is the concept of the law being based on the morally correct thing to do. This is sometimes associated with ‘Divine law’ which suggests that there are laws of greater power than that of humans. An example of this is human rights and their ‘Universality’.
Positive law refers to a body of man-made laws that may regulate conduct in a certain area. This type of law may be traced back to ancient times and is typically passed by government at the local, regional, or national level. Positive law is sometimes contrasted with natural law, which is typically based on moral principles. Positive laws might set the standards for acts that are required as well as those that are prohibited. Penalties are usually given to those who violate positive law Some examples of positive laws might include statutes, judicial verdicts, and ordinances. Positive laws may be written and enacted by government lawmakers, courts, and administrative agencies. Those who are physically present where the positive laws have governing power are typically required to obey such laws.
Legal positivism is sometimes compared with natural law. Natural law commonly refers to the natural order, or a moral and ethical code that people share as human beings. Positive law is artificial order and consists of rules of conduct that people place upon each other. Natural law is inherent and may not require government enforcement, while positive laws are the legal ones that people are typically expected to follow.
Legal positivists may feel that for a law to be valid, it should be codified, or written down, and recognized by some type of government authority. They might reject the theory that people will obey inherent law based on moral values. Positive laws may be made by those with authority to ensure that if they are broken, a penalty will ensue.
QUESTION TWO
The law of contract and company law has been established not only regulate the running of business but also to ethically promote protection for all parties concerned. To what extent this objective has succeeded?
(10 marks)
The government raised issues of concern in business and has implemented many measures to curb corporate wrongdoings through corporate governance. How far this effort has achieved its objectives. Answer by giving illustrations.
(15 marks)
QUESTION THREE
The principle of natural justice has been applied by the courts in cases of unfair dismissals where there was as clear breach of the principle by the parties concerned. In the case of employers the observance of natural justice has found its way in domestic inquiries held internally by organizations. Explain and elaborate how this observance could be extended more effectively by employers especially in avoiding any legal suits involving a breach of natural justice within the jurisprudence of employment law.
QUESTION FOUR
a) Discuss ways that is possible to curb the occurrence of external whistle blowing.
(10 marks)
b) Debates on enacting legal protection for whistleblowers to assist organization would inculcate a more ethical working environment. Once undertaken this effort need to be supported by procedures that will ensure a successful policy implementation. Discuss.
(15 marks)
