The Prevailing Legal Theory In The United States Today

The Prevailing Legal Theory in the United States Today – Natural Law versus Positive Law Natural law as known by most people is the oldest form of law. Natural law or the law of nature is based on morality. Prior to the form of laws that we currently know, the laws or rules that were set forth by society, there was the law of nature formed from the belief that humans have an instinctive ability to know right and wrong. Natural law doesn’t necessarily require a belief in God but still refers to a higher, ancient set of nature laws, rules to follow that are obligatory on all of society. Now on the other hand, positive law is law that is created through a political process and it goes against the idea of natural law. (Abadinsky, 2014) Positive

Furthermore, all of this means that the laws that were created by men are constantly considered second to natural laws, since natural law is originated from human nature. In my paper I will be discussing the difference between, the history of, and the current use of natural law and positive law. Natural law was the foundation of our government, the founders of our great nation made their intents or morals official by establishing the Constitution. The founders wanted our nation to be based natural rights and freedom. They wanted to have a nation that was not controlled by the government but rather protected by it. To have a government that protects our natural rights and our freedoms. However, the Constitution does not give us our rights but stops our government from crushing the rights in the pursuit of their own goals. Natural law is the direct opposite of positive law. Positive law is based on the presumption of majority rules and society’s rights are granted. The government’s objectives are to serve the majority under

John’s goal in his model was to give a meaning of law that removed all evaluative language. However, there is still some aspect of natural law in John’s theory, but he does reject the blurring line between law and morality. John does give a similar unified definition of law which is, “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” John’s thought behind law is that God and men both make laws however; his difference is with the laws of God or the laws of reasoning and those of historical human societies that were made by political superiors. He wanted a distinction between the concepts of law from the science of legislation which consisted of criticism of the law. John sought for an undivided, single, sovereign as the ultimate source of law. He believed that you needed to deny the existence of positive law and then to devote to sovereignty in humans. One of Dartmouth College professor, James Murphy explains it like this, “Although our philosophers often seek to use the term positive to demarcate specifically human law, the term and concept are not well suited to do so. All of divine law is positive in source, and much of it is positive in content.”(Philosophy.hku.hk,