Introduction
Natural law theory and positivism are two approaches to thinking that differ in the basic legal principles and rules on the treatment of law. Principles and rules influence English jurisprudence and the administration of justice through the attitudes, perspectives, approaches, decisions and pronouncements of judges and jurists. Natural law theory and positivism dominate respective areas of English jurisprudence and adjudication process, but these approaches may also simultaneously exert influence to raise issues and cause developments in other areas.
Influence of Natural Law Theory
Natural law is “the order of the dynamic tendencies that are proper to man as a rational being”. The rule of kings under divine providence is a natural tendency. In Calvin's Case, the decision of the court reflected the natural law principle on the reign of kings. The case involved the unlawful removal of Robert Calvin from an estate that he inherited in England on the ground that he was an alien born in Scotland. Under English law, an alien cannot own an estate in England. Calvin was born in Scotland in 1603, which is the year that King James of Scotland assumed the crown in England after the union of Scotland and England. The court held that all individuals born in Scotland at the time when James assumed the English throne are by divine law natural born subjects of England who are eligible to inherit under English law. The ruling in this case became the basis of the principle of jus soli or the rule that recognises nationality by virtue of birth in a defined territory.
Natural law provides guiding principles on jurisprudence. The ‘right to life, liberty and property’ are absolute under natural law. Natural law encompasses reason, proper conduct, freedom, equality, good conscience, ethics and morals. In Somerset v Stewart, the application of the principles of freedom, equality and good conscience in the decision of the court exemplified the influence of natural law on jurisprudence. In this case, James Somerset was a slave. After a failed attempt to escape, his master bound him and brought him to a ship travelling to Jamaica where his master plans to sell him. An anti-slavery leader petitioned the court to issue a writ of habeas corpus and evaluate the validity of the detention. Arguments raised by Somerset’s counsel revolved around the claim that slavery is inimical to natural law. The court agreed, with Lord Mansfield explaining that slavery is unreasonable and immoral.
In terms of adjudication procedure, natural law provides guidelines on the treatment of law in the determination of legal issues brought to court. There is a non-conventional relation between law and morality. Interpretation of law cannot occur without some reference to moral notions. The courts also adhere to natural law in rejecting an unreasonable custom. Exercise of reason is key to determining any conflict of laws. Natural law also posits the treatment of similar cases to establish the rule on precedents. Natural law matters most in the areas of civil and criminal procedure that involve questions on moral customs and reasonable determination, including issues pertaining to family law and succession, quasi contracts and unjust enrichment, and criminal rights. In Moses v Macferlan, reasonableness and moral norms applied to the case. Moses paid his debt to Macferlan in cash and promissory notes. Both agreed that Macferlan would not collect the value of the notes from Moses. However, Macferlan sought and successfully collected the value of the notes from Moses after the Court of Conscience rejected the agreement. The appellate court recognised the agreement and ordered the return of the value of the notes. The appellate court allowed the recovery of the money because it was a mistaken payment and the recipient has an obligation as a matter of natural justice to refund the money.
Influence of Positivism
Positivism refers to the perspective that considers law as a human creation through the process of legislation and treats law objectively through an analytical technique to prevent or minimise subjective values from influencing legal processes and decisions. When compared to natural law, positivism recognises that it is not necessary to connect law and morality for law to operate. Validity of laws do not depend on moral considerations. Positivism is favoured in commercial law. Positivism considers manmade law as tools to facilitate interactions and conditions for engaging in binding agreements, such as contracts or wills. Three cases show the stronger influence of positivism on English jurisprudence and the administration of justice.
In Kleinwort Benson Ltd v Malaysia Mining Corp Bhd, positivism was manifest in the decision of the court not to dwell on the issue of moral responsibility. In this case, the plaintiff merchant bank approved two loans to the defendant company. The defendant company issued two letters of comfort expressing the commitment of the company to meet its liabilities. The tin market collapsed and the company ceased operations and went into liquidation. The plaintiff bank brought an action based on the second letter of comfort. The Court of Appeals favoured the defendant company based on the argument that the letter of comfort had no legal effect since it contained a ‘moral responsibility’. Lord Justice Gibson explained that the “consequences of the decision of the defendants to repudiate their moral responsibility are not matters for this court”. In Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck), the court applied the positivist approach in considering law and morals to be different. In this case, the plaintiff was a bank that loaned to a shipping company with a shipping vessel as collateral. The defendant is the insurer of the shipping company and the shipping vessel. The vessel that served as collateral became uninsured after it went to a prohibited zone without informing the insurer. The insurer failed to inform the lending bank about the loss of insurance coverage. A missile hit the vessel and rendered it a complete loss. The lending bank filed an action against the insurance company for its losses. The Court of Appeals ruled in favour of the insurance company. There was no actual fraud by the insurer, so an implied obligation cannot stand. The defendant insurer was at perfect liberty to prefer its own commercial interest in not disclosing to the lending bank and that it had no legal duty to disclose. The insurer only have a mere moral duty to inform the bank. In Banque Financibre de la cite SA v WA Westgate Insurance Co Ltd, the court held that in commercial contracts, honesty and fairness are no definite guides in considering the existence of an obligation that may arise regardless of whether or not there was dishonest or unfair intention. Fairness of commercial contracts cannot rely on moral principles. These decisions remain relevant to insurance law, contract law and tort law.
Concurrent Influence of Natural Law Theory and Positivism
While natural law and positivism have found a place in specific areas of English jurisprudence, neither approach encompasses all aspects of law and legal procedure. Moreover, several criticisms of natural law and positivism emerged. Criticisms of natural law revolve around the possible misalignment between natural law and social reality when law fails to keep up with changing social norms and values. Criticisms of positivism hinge on the incompleteness of the context in determining legal issues with the exclusion of moral aspects. Natural law and positivism may also converge to address the criticisms, to some extent. It is in the area of constitutional law, especially on human rights, that both natural law and positivism have strong influence. However, these approaches may also create issues. Sharp division in the decisions of the UK Supreme Court increased when the European Convention for the Protection of Human Rights and Fundamental Freedoms became part of English domestic law. The inevitable interconnection between natural law and positivism leads to developments in this area.
Conclusion
Natural law and positivism shaped English jurisprudence and administration of justice by providing principles and rules for judges and juries. Each approach has stronger influence on specific areas of English law and legal procedure. Natural law manifests more starkly in areas of jurisprudence that strongly hinge on freedom, equality and ethics. Positivism dominate areas of jurisprudence involving contracts and commerce. Areas of convergence reflect the interlinked influence of natural law and positivism, which facilitates developments in jurisprudence.
Bibliography
Cases
Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1991] 1 AC 233.
Banque Financibre de la cite SA v WA Westgate Insurance Co Ltd [1991] 2 AC 249.
Calvin's Case [1608] 7 Coke Report 1a, 77 ER 377.
Kleinwort Benson Ltd v Malaysia Mining Corp Bhd [1989] 1 WLR 379.
Moses v Macferlan [1760] 2 Burr 1005.
Somerset v Stewart [1772] 98 ER 499.
Books and Articles
Blackstone W, The Oxford Edition of Blackstone: Commentaries on the Laws of England: Book I of the Rights of Persons (Oxford University Press 2016).
Bordenheimer E, Jurisprudence: The Philosophy & Method of the Law (McGraw Hill Company 1940).
Christie G, ‘Judicial Decision Making in a World of Natural Law and Natural Rights’ (2012) 57 Villanova Law Rev 811.
Coyle S, Dimensions of Politics and English Jurisprudence (Cambridge University Press 2013).
˗˗ ˗˗ Modern Jurisprudence: A Philosophical Guide (Hart Publishing 2014).
Finnis J, Natural Law and Natural Rights (2nd edn, Oxford University Press 2011).
Helmholtz R, ‘Natural Law and Human Rights Law: From Bracton to Blackstone’ (2005) 3 Ave Maria L Rev 1.
Morrison W, Jurisprudence: From the Greeks to Post Modernity (Routledge 2016).
O’Sullivan R, ‘Natural Law and the Common Law’ (1945) 31 Grotius Soc 9.
Phang A, ‘Positivism in the English Law of Contract’ (1992) 55 MLR 102.
Postema G, ‘Legal Positivism: Early Foundations’ in Andrei Marmor (ed), The Routledge Companions to Philosophy of Law (Routledge 2012).
Price P, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ (1997) 9 YJLH 73.
