Law

The Rule of Law

The rule of law is the principle that law should rule.

Liberals see law as a guarantee of liberty
- The fundamental purpose of law therefore is the protection of rights
- LOCKE – ‘right to life, liberty and property’
ARISTOTLE – ‘government of law, not of man’
DICEY’S 4 features of the rule of law (page 154)

Natural Law

Natural law, or the law of nature, is a philosophy of law that is determined by nature, and so is universal.
PLATO – ‘philosopher kings’ have knowledge of unchanging moral laws which only they knew
This line of thought was continued by ARISTOTLE who believed that the purpose of law was to encourage humankind to live with virtue

Positive law

Positive laws are human made laws that oblige or specify an action within a territory otherwise punishment may be necessary
LOCKE and THOMAS JEFFERSON – the purpose of human made rights is to protect our God given rights
AQUINAS – human laws have a moral basis

Similarities

Differences

Both uphold justice – natural through its fidelity to higher principles and positive through its process (substantive vs procedural)
Both or either can incur punishment
Natural law is achieved through reason, and positive law is the application of human reason

Natural law is seen as more just because it is less likely to be manipulated for immoral ends
Different origins – natural law comes from higher power and so is criticised for mysticism, and positive law derives from humans/civic society
Natural law is unchanging (PLATO) whereas positive law is able to respond to the needs of society at the time (AUSTIN – ‘legal positivism’ – law is changing and enforced by a sovereign superior’)
Law is human, so how can we criticise it? (WENDELL HOLMES – law is human action, nothing more)

Law and Liberty

J.S.MILL – ‘the only reason why power of one should be exercised over another is to prevent harm to others’ –‘over his own body and mind the individual is sovereign’
- Law should only restrict the individual in the realm of ‘other regarding actions’ and never ‘self-regarding actions’
- However, there is a blurred line as to what is defined as ‘harm’ to another
  - Also, who comes under the category of ‘others’ – e.g abortion
PATRICK DEVLIN – there is a public morality which must be upheld by law
- some believe that the question of morality is too complex to be decided by the state, and must be left to the individual

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