Laws are body of rules and regulations that function within a structure of society. A country will have its laws and within the country there are many organisations that have its own laws. For example, there are separate laws in a temple, church, school, society, or a college. “Law is a multi-vocal term”[1]. Law is not a single body, there are many types of law like criminal law, intellectual property law, company law, tort law, contract law, criminal law etc. Today many more types of law have emerged with the expansion in various fields such as maritime law, food law, taxation law, labour law, cyber law etc. “Schwarzenberger Georg says that three types of law function in a society- the law of power, the law of coordination and the law of reciprocity”[2]. I am going to cover positivist and naturalist law and how they serve the society differently but are always referred to as ‘law’ by the society. ‘A positivist would consider law and morality as separate terms whereas a naturalist would believe that a law should always be moral or else it cannot be called a law’[3].
“A person who has survived the positivist law will always want to switch to naturalist law because suffering injustice sharpens the men’s insights into the concepts of justice”[4]. For ex, Section 377 of the Indian Penal Code was considered by many people as an unjust law (positivist law) which does not consider morality. The existence of this law was against the moral principles laid down by the society. So, it was struck down by the Supreme Court of India. ‘Durkheim says that a society moves from mechanical solidarity to organic solidarity in and for this he mentions that two conditions need to be fulfilled. One being, that material developments have taken place in the society leading to increase in moral density, and this should also be accompanied by an increase in population. The second condition is that there should be weakening of traditional systems and increase in belief of individuality’[5]. This has happened in Indian society with respect to the above example of section 377. A transformation from positivist to naturalist law with the change in society.
I agree with the fact that people many a times consider ‘law’ as a single entity and do not distinguish between them, they do not refer to different kinds of law with different names. But I disagree with the fact that referring to law as a single entity completely weakens the tendency to understand it. If you are following an ‘epidemic law’ during the epidemic then referring to it as merely a ‘law’ would not weaken your tendency to understand it, you will still follow the law because you understand its necessity . For understanding any object or subject, knowing its name and actual terminology is important. Usually, you start gaining knowledge about a particular subject only after you know what it is called. But there might be times when you understand the broad meaning and its description but do not know what it is exactly called. For example, there are many people who follow the epidemic law because they understand its importance but they refer to it as a ‘law’ and not as an ‘epidemic law’. I do not think that referring to different kinds of law as a single entity completely weakens the tendency to understand it because people follow these laws as they understand its necessity.
A positivist law example would be the laws that prevailed during the Nazi period. The famous Hart-Fuller debate discussed the Nazi-informer case. ‘In this case, a wife had filed a complaint against her husband that he had made disrespectful comments about Hitler. The husband was imprisoned for making such remarks’[6]. ‘Hart says that law and morality are different issues, a law need not be moral in order to be called a law. An immoral law that does injustice will also be a law’[7]. ‘Fuller on the other hand said that the entire purpose of law is to do justice and so an immoral law will cease to be a law if it leads to injustice. He also says that Nazi laws were not laws but disguised as laws. They went against the human rights’[8].
We all have experienced law in our lives. Sometimes it might do good whereas sometimes it might bring disruption to the society. Positivist and naturalist laws are referred to as oppressive and non-oppressive(friendly) laws respectively by the general public. People understand the difference between repressive and non-repressive laws but they do not use the terminologies of positivist law and naturalist law in their usual language. Not knowing and not using these terminologies in practical life does not reduce their tendency to understand law as they still realise the basic difference between these two kinds of laws.
‘Edward A Ross is famous for his theory of social control’[9]. ‘He says that social control is a form of social ascendency or dominance of society over the individuals meant to harmonize the different interests and activities in the society’[10]. The opposite of social control is coercive control which is a feature of positivist law where people are not heard and laws are mostly brutal. Social control is a feature of naturalist law which serves to integrate people who belong to different background by a fair and just rule of law. ‘However, Ross also says that legality and morality alone is not enough to constitute social control, it must also be supplemented by public opinion’[11]. I completely agree with Ross. A state that follows natural law takes decisions in the favour of people and does not allow any kind of injustice within the state. All legal decisions of the state must be taken by analysing the effect of that law upon people.
These are the differences between naturalist law and positivist law and people do understand this difference however not everyone is aware of these scientific terms, positivist, and naturalist. A democratic country like India has mostly naturalist laws but there might be some laws that may seem to favour certain communities and disadvantage others. These unfavourable laws might actually be a natural law but some sections in the society may see it as a positivist law. A positivist law has negative implications on a certain group of people who see it as an unjust law whereas other community may call it a correct law. These are the terms they use for referring to a law good for society and a law bad for society. Law is referred to as a single entity by people but they always understand the difference between laws that are good for society and laws that are bad for society. Also, not using the exact scientific terms will not hinder their capacity to understand them.
In the Citizenship Amendment Act passed by the Parliament of India, People opposed it because they considered it to be immoral while others did not. Everyone understood the law but they had different reactions to it. They understood that this same law would serve all the communities differently. “Bentham states the functions of law as something that provides subsistence, aims at abundance, encourages equality, and maintains security”[12]. People in reality have the awareness of how different laws treat them and just by not knowing the names of different versions of law cannot weaken their tendency to understand them. All the communities somewhere know how laws are treating them and whether this treatment is equitable or not. The four objectives of the law stated above are features of naturalist law and not of positivist law. The functions of different kinds of laws are different. A society with positivist law structure will have repressive laws and as long as a law satisfies the elements mentioned in Hart’s definition of law, it will be called a law. ‘Hart says that if a law comes from a sovereign state and is backed by some kind of authority, then it will be called a law’[13]. ‘A positivist law will depend solely on the legislator and hence the law might be arbitrary. This may also lead to a formation of totalitarian government’[14].
Law is a very important part of everyone’s life and we experience law almost daily. It is not tough for a logical and active being to understand law and its functions. People measure the difference between fair and unfair laws through the way a particular law serves the society. Every law does not have the same function, they are completely different in the social benefits or detriments they provide. A reasonable man will not find it hard to point out this difference. It will be easy for him to differentiate between Nazi laws and laws implemented in India. If they find a law atrocious, they will call it an atrocious law but would not detach the word law from atrocious. ‘As somewhere they all are aware that it is a law because its enforcement comes from a sovereign state backed by sanction’[15]. A positivist law serves the society very differently than a naturalist law. A positivist law is mostly disadvantageous to the people whereas a naturalist law is fair, just and moral. Similarly, a labour law and food law will have different functions and it will be easy to distinguish between these.
There can be many more versions of law which I had mentioned in the beginning of the essay. In another version of law, the tendency of people to understand law might weaken if they refer to it as single entity. For example, negligence is punishable both under tort law and contract law. So, if a person commits a negligent act, there will have to be clarity as to that person has committed negligence under which law as in this case law cannot be treated as a single entity. It will become compulsory to specify that the person is referring to which version of law. This is a case where law cannot be used as a single entity as its understanding might be hampered which will lead to confusion. Positivist and naturalist laws are just a way of defining law. A criminal law might be considered a naturalist law or a positivist law.
Attempts to understand law’s value in the society are weakened by the tendency to treat it as a single entity, when in reality different kinds of laws have different functions and/or forms, and/or contribute to different social goods. I find that this statement is subjective as law and its functions itself are very subjective. A law on being treated as single entity might be problematic whereas on some occasions it might not be. As I have explained that in the context of positivist law and naturalist law referring to law as single entity is not problematic whereas in the example of negligence it is problematic to refer to law as a single body which it is not.
[1] VAN EIKEMA HOMMES, H. J. (1974) “THE FUNCTIONS OF LAW AND THE ROLE OF LEGAL PRINCIPLES.” Philosophia Reformata, vol. 39, no. 1/2, pp. 77–81. JSTOR, www.jstor.org/stable/24706711. Accessed 21 May 2020.
[2] Schwarzenberger, Georg. (1943) “The Three Types of Law.” Ethics, vol. 53, no. 2, pp. 89–97. JSTOR, www.jstor.org/stable/2989186. Accessed 21 May 2020.
[3] Fuller, Lon L.(1958) Positivism and Fidelity to Law: A Reply to Professor Hart, Harvard Law Review, vol. 71, no. 4, pp. 630–672. JSTOR, www.jstor.org/stable/1338226. Accessed 16 May 2020.
[4] Carpenter, Richard V.(1955) Reply to Positivist, Journal of Legal Education, vol. 8, no. 2, pp. 185–187. JSTOR, www.jstor.org/stable/42890947. Accessed 14 May 2020.
[5] Deflem, Mathieu. (2008) From Sociological Jurisprudence to Sociology of Law, Sociology of Law: Visions of a Scholarly Tradition. 1st edition. Cambridge University Press.
[6] Hart, H. L. A. (1958) Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71, no. 4, pp. 593–629. JSTOR, www.jstor.org/stable/1338225. Accessed 16 May 2020.
[7] Hart, H. L. A. (1958) Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71, no. 4, pp. 593–629. JSTOR, www.jstor.org/stable/1338225. Accessed 16 May 2020.
[8] Fuller, Lon L.(1958) Positivism and Fidelity to Law: A Reply to Professor Hart, Harvard Law Review, vol. 71, no. 4, pp. 630–672. JSTOR, www.jstor.org/stable/1338226. Accessed 16 May 2020.
[9] Deflem, Mathieu. (2008) From Sociological Jurisprudence to Sociology of Law, Sociology of Law: Visions of a Scholarly Tradition. 1st edition. Cambridge University Press.
[10] Deflem, Mathieu. (2008) From Sociological Jurisprudence to Sociology of Law, Sociology of Law: Visions of a Scholarly Tradition. 1st edition. Cambridge University Press.
[11] Deflem, Mathieu. (2008) From Sociological Jurisprudence to Sociology of Law, Sociology of Law: Visions of a Scholarly Tradition. 1st edition. Cambridge University Press.
[12] Schwarzenberger, Georg. (1943) “The Three Types of Law.” Ethics, vol. 53, no. 2, pp. 89–97. JSTOR, www.jstor.org/stable/2989186. Accessed 21 May 2020.
[13] Hart, H. L. A. (1958) Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71, no. 4, pp. 593–629. JSTOR, www.jstor.org/stable/1338225. Accessed 16 May 2020.
[14] Carpenter, Richard V.(1955) Reply to Positivist, Journal of Legal Education, vol. 8, no. 2, pp. 185–187. JSTOR, www.jstor.org/stable/42890947. Accessed 14 May 2020.
[15] Hart, H. L. A. (1958) Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71, no. 4, pp. 593–629. JSTOR, www.jstor.org/stable/1338225. Accessed 16 May 2020.
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