Deontology is a better approach to morality than utilitarianism because an action is based on the principles, not consequences. Deontology is also known as duty-based ethics. Immanuel Kant introduced an idea of Deontology to the…. This ordering of the universe leads to laws that are natural; things have a purpose. The principles of law are an inherent part of nature.
Even without the human capacity for reason, the principles of law would exist Perlman. From a moral perspective, natural law is an affirmational objectivism, meaning that there can be a reasonable validity to a moral position. Deontology is the view of the act to be moral or not moral from the action done. In deontology, the consequences that an action may impact to individuals are not considered but rather, the logic behind the action is determined.
Such action should arise from the duty, and law assigned to individuals by a system but not out of self-interest or the consequences. Essays Essays FlashCards. Browse Essays. Sign in. Essay Sample Check Writing Quality. Show More. Read More. Words: - Pages: 4.
The law got the very sanction behind it since it has got its validity from the authority itself. Positivist, often does not entails themselves with, what ought to be, separating the ideals from the law, which is why there seems a great criticism of positivist separating law from moral.
Hobbes does saw the absolute government as the only alternative to the terrifying anarchy. Only Leviathan would enact laws that would preserve the public safety. Not even once, Hobbes has hinted towards naturalistic perspective.
In the 18 th and 19 th century, legal thinker developed the legal positivism, mainly by Jeremy Bentham and Austin. This came as an opposition to the natural law theory.
Contention made under this only relates to the fact about how law has been created. A positivist will not go under the scrutiny of what law consist of but will only prefer scrutinizing how the law comes into force.
As per the philosophy, it is not the work of legal positivist to judge the law by the question of justice and humanity, but only by the way the law has been created. What all were classic criticism of Positivism theory will be dealt under the naturalist model. Jeremy Bentham was the one who initiated with that of legal positivism. But Bentham, did move towards an angle of putting moral philosophy into it. He gave his famous understanding of greatest happiness principle or the utilitarian principle.
In this, he explains that it is not just the usefulness but also determining the extent to which it creates happiness. Bentham does give importance to the fact of creation of moral obligation to produce the greatest amount of happiness. Also, in contrast with Hobbes, Bentham wants the legislature to change, as it gives more impetus to the legislature to work in consonance.
Nevertheless, Bentham did held that law is not rooted in the natural law but it is the command expressing the will of the sovereign.
This view was later developed by Austin. Hence, even if the law questions the moral fabric, this is still law. In spite of the fact, Bentham gives his utilitarian theory, he mostly remained against the natural law fabric.
On similar lines, Austin also approached on a strict line, negating the concept of natural law and providing with the command theory. According to Austin, the law is nothing but a command of sovereign. The sovereign being the one to whom all people grant respect.
There is always a part of sanction that is associated with the command. Austin was crystal clear in maintaining the notion of law being not moral. Even if the law is opposed to nature it is still a law, and must be obeyed, since it is given by the sovereign. In the previous instance, where an example was referred in which there was no punishment for murder, will this result in people committing murder everywhere? Hence, this situation clearly implies that there is certain moral obligation which binds humans, irrespective of the fact whether there is law or not.
But the intersection is quite difficult to get accustomed with since it revolves around obligatory nature of moral obligation. Because, on the same previous note, one cannot deny the fact that there will be an increase in cases of murder, once there is no punishment. Hence, this moral obligation is decided through the conscience of a person which is different for different person. The Natural School advocates the importance of reason behind everything.
The naturalist model do consist of valid legal knowledge but unlike the positivist model, where the legal knowledge is constrained to only what the authority says, the naturalist will base the legal knowledge with reason as well as with rational awareness and acceptance of the existence of objective values, standards and norms of proper conduct.
This factor makes the natural school more appealing, since, it gives us the presupposition which enables us to deal with all these facts or judgement in an intelligent manner. To moreover, get into the detail, natural school does not delve into declaring or discriminating the present legal system or any legal theory. The main contention being the element of reason, must be complied by, irrespective of the legal theory it discusses.
The world is wrought with dueling philosophies and principles. From political parties to legal ideologies, the world seems destined to be divided into some type of dichotomy. The legal philosophies of Positive and Natural law are no different. Many of us notice these differences, as most of the time they are quite obvious, but most of us do not, however, take the time to ponder and mull over in our minds just why these distinctions are important.
It is not enough to say that two things are different or are simply opposed. Rather, the ability to truly understand the philosophical and jurisprudential underpinnings of each school of legal thought, one must engage why this distinction must be made in the first place and what effect this has on our legal understanding.
It is my intent to show in this paper, on top of explicating the basal differences between the two ideologies, why making the distinction between the two is important. Various pieces of legal literature will be used in order to convey this point, such as pieces by Lon Fuller including the infamous debate between himself and H. To better understand the background of these jurisprudential philosophies, we will first explore their histories and explicate the details of their respective precepts.
When one first thinks of natural law , the first word that often pops up in the mind is morality. The concept can be delineated all the way back to Aristotle, who stressed that just because something was seen as being just in the eyes of the law did not mean that it was necessarily just in the eyes of nature.
Indeed, natural law can be seen as a body of moral principles that are said to help guide human conduct. These laws are said to derive from nature it Having a better understanding of a positivist and a naturalist perspective, each in their own regard, will enable us to engage with the legal system and with each other with greater fairness and efficiency.
On top of respecting these philosophies in their individual realms, we must also recognize how they coincide and what this convergence means to the way in which we live our lives. Works Cited Fuller, Lon L. Hart, H. The Concept of Law. New York: Oxford UP, Fuller, Lon L. The Case of the Speluncean Explorers. Finnis, John. Natural Law and Natural Rights.
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