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  • Ashish Kundu

A Positivist Doorway To A Naturalist World

Updated: Feb 3

By Ashish Kundu


While tracing the authority of law, we often confront the flagrant debate between legal positivists and naturalists. Despite slight internal disagreement about the true origin of law, the positivists are resolute about the existence of laws by position and unequivocally discard the notion of the natural law. However, to me, their self-contradictory foundation puts them at a disadvantage when compared to the naturalists. Although the chasm between the two schools – legal positivists and naturalists – has been increasing since time immemorial, the intrinsic fault lines that are present in the argument of legal positivists lends credence to the naturalists’ opinion and makes us question if the doorway which the positivists have opened ultimately leads to a naturalist world.


Similar premise, differing conclusion?

Natural law theory is a mode of thinking systematically about the connections between the cosmic order, morality, and law, which, in one form or another, has been around for thousands of years (Bix, 2002). The naturalists conform to ontological idealism and believe that laws exist because of a metaphysical foundation. Although modern natural law theorists like Lon Fuller (Fuller, 1969) and Ronald Dworkin (Dworkin, 1986) have developed alternative approaches, traditionally, the approach had been that the theological and the metaphysical foundation relied upon was the God. The genesis of this traditional natural law theory lies in Saint Thomas Aquinas’s Summa Theologica (1947). In the first part of the Second Part [FS], Aquinas answers Q[93], A[3] “Whether every law is derived from the eternal law?” in the affirmative and writest:


“The plan of what is to be done in a State flows from the king’s command to his inferior administrators… the eternal law is the plan of government in the Chief Governor [God], all the plans of government in the inferior governors must be derived from the eternal law.” (Aquinas, 1947, p. 1345)


Although the legal positivists start on similar premises, they reach a different conclusion. John Austin (2001) believed that “The matter of jurisprudence is positive law... or law set by political superiors to political inferiors” (p. 18). Apparently, in his opinion, the Chief Governor should be the political superiors, i.e., the legislature – a position in contradistinction to Aquinas’s. The legislature, or political superiors as Austin would call it, is nothing more than an elected body of representatives. The mere representation does not put the legislature on a higher pedestal. However, even if this argument is accepted, would this not make the general public, i.e., the voters, the political superiors, for they are the ones who have put the legislative members in a position to legislate? Legal positivism conveniently assumes the existence of position; however, it leads to an unintended loop of finding a proper political superior. Aquinas's explanation answers this vexatious loop by placing God, who has divine providence, above every human being (Aquinas, 1947, p. 47).

Different positivist thinkers like H.L.A. Hart and Hans Kelsen followed up on Austin’s theory; however, they introduced their subtleties. While Hart formulated the concept of the Rule of Recognition, Kelsen settled for an epistemological approach – assuming the authority of law to be a faculty of presupposition – with his Grundnorm. Although both approaches are contentious in their own right, the focus of this article will be on Hans Kelsen’s pure theory of law.


Kelsen’s Pure Theory of Law

Hans Kelsen (as cited in Max Knight, 1967) predominantly focused on providing legitimacy to the acts through the creation of a norm. He engaged in the “is-ought fallacy” and opined that to provide legitimacy to a norm, there ought to be a higher norm. A similar analogy has to be applied to this higher norm ad infinitum until the person runs out of the norms. It is at this stage that he comes up with the concept of “Grundnorm” or the basic norm. He believes that all the actions can trace their legitimacy to this Grundnorm.

This proposition of his is, in my opinion, similar to what is called causal determinism in scientific parlance. Causal determinism is the notion that every action of ours is determined by some antecedent event, and we do not have free will. To give a cosmological example, it could be something like this: the birth of homo sapiens happened because of the creation of the planet Earth, which owes its creation to the birth of the Milky Way galaxy and the Universe. The Universe itself was the result of the Big Bang (can be considered as tantamount to our Grundnorm), the origin of which remains a contentious topic.

Just like we face a dead-end in causal determinism (of not knowing the reason behind the occurrence of the Big Bang), similarly, we come across the problem of what the Grundnorm signifies. To evade the justification, Hans Kelsen writes:


“Finally, it is to be noted that a norm need not be only the meaning of a real act of will; it can also be the content of an act of thinking. This is the case if the norm is only presupposed in our thinking... since there is a correlation between the ought of a norm and a will whose meaning it is, there must be in our thinking also an imaginary will whose meaning is the norm which is only presupposed in our thinking – as is the basic norm of a positive legal order.” (Kelsen, 1967, p. 9) [Emphasis added]


The emphasized part of the excerpt implies the epistemological approach which Kelsen resorted to. He believed that the Grundnorm is a faculty of presupposition: which is quite unlike a legal positivist. My understanding is that not to breach the realm of positive law, Hans Kelsen attempted to sway away from the unintended and imminent consequence it was leading to – that God might be the Grundnorm.

Philosophers like Thomas Hobbes and John Locke have postulated, even though differently, that the legitimacy of our acts is derived from God. According to John Locke (1997), God knows the real essence, and humans know only nominal essence for the natural world. This line of reasoning flows from Aquinas’s Summa Theologica. Although it can be contended that Locke was a theologist and biased enough to lead to that conclusion, this does not change the fact that a similar analogy can be applied to the Grundnorm, too, to devise a more satisfactory approach.


Conclusion

Kelsen’s emphasis on the hunt for a higher norm showcases his proclivity to identify a legitimate source of authority. When a crime is committed, the law enforcement agencies trace the act to a criminal code and prescribe punishment accordingly. This criminal code itself derives authority from the legislature, which owes its formation to the highest legal document of the country, i.e., the Constitution. However, the question arises, what next? What supersedes the constitution of the country is the basic norm. In his search for this Grundnorm, Kelsen conveniently ignored Aquinas’s exposition of the presence of divine providence.

Hersch Lauterpacht also raised a similar concern and questioned whether the theory of hierarchy of legal norms does not imply a recognition of natural law principles, despite Kelsen’s violent attacks upon natural law ideology (Friedmann, 1967, p. 286). When looked at from a bigger perspective, a metaphysical conclusion – the presence of God and natural law – of Kelsen’s theory perfectly fits the normative order. Not only does it provide more credence to Kelsen’s theory, but it also bridges the hiatus between legal positivists and naturalists – opening a doorway for the interaction of both schools.


Ashish is an economics graduate currently reading law at the Faculty of Law, University of Delhi.


References

Aquinas, S. T. (1947). Summa Theologica. (F. o. Province, Trans.) New York: Benziger Bros.

Austin, J. (2001). The Province of Jurisprudence Determined. (W. E. Rumble, Ed.) New York: Cambridge University Press.

Bix, B. H. (2002). An Outsider's Guide to Natural Law Theory. APA Newsletters on Philosophy and Law, 01(01), 126-130.

Dworkin, R. (1986). Law's Empire. Cambridge: Harvard University Press.

Friedmann, W. (1967). Legal Theory (5th ed.). New York: Columbia University Press.

Fuller, L. L. (1969). The Morality of Law. New Haven, Connecticut: Yale University Press.

Kelsen, H. (1967). Pure Theory of Law. (M. Knight, Trans.) Berkeley: University of California Press.

Locke, J. (1997). An Essay Concerning Human Understanding. (R. Woolhouse, Ed.) London: Penguin Books.