Natural and Positive Law
“Law is a vitally important force; it is the skeleton that structures our economic, social, and political lives.” This statement demonstrates very clearly the importance of law in human society. It is the law created by a parliament and the way that those laws are interpreted that define the responsibilities and privileges of the citizens it governs. With the law playing such an important role in the lives of all those people who fall under its jurisdiction, it is no wonder that its content and purpose have become the focus of many heated debates since time immemorial when laws were first employed. Over the years, like minded individuals, sharing general political and legal views have come together to form many different schools of thought, each with their own perspectives and insights as to how the law works and how it should be used. Many of these groups have gained enough support that they have come to be considered as a major theoretical perspective on the law and legal practice. Four of the most widely recognized legal theories include: positivism, natural law theory, legal realism and more recently, critical legal studies. ... These four theories of law are commonly used in the interpretation and analysis of our modern legal system, and are often utilized as the basis of many current legal debates and inquiries. ... The question of law placed before the Supreme Court was, whether or not a person accused of a crime should be allowed to challenge potential jurors for cause if there is a reasonable chance that they could hold a bias that may be detrimental to the defendant’s case. ... Legal positivism is one of the oldest perspectives on the law. ... In essence, the people have delegated political responsibility and law making privileges to the party that they feel most nearly manifests their views. ... For a legal positivist there is no need to question any law, because although some rules may seem unfair to certain individuals, it is assumed that the government has considered all sides of the issue and has very meticulously built a law that will best suit the needs of its citizens. ... 638 was enacted by the government it is assumed by positivists that it was created for a purpose, and considering that evidence had been provided to show that there was a ‘reasonable’ chance that potential jurors would be biased, Hutchison’s decision reflected parliament’s intentions when creating the law. ... Natural Law, the second of the theories under scrutiny, focuses more closely on a necessary link between law and morality. “The essence of the natural law perspective is lex iniusta non est lex; an unjust law is no law at all,” a viewpoint quite the opposite of that held by legal positivists. Natural law theory insists that, “there are universal moral values that must inform the operation and study of law and legality.” Meaning that because God’s law is perfect, man’s law should always strive to conform as closely as possible to the morals derived from this divine mandate. So it is assumed by practitioners of natural law that, although ‘man’s law’ can never be completely perfect, we must still strive to make it as close to God’s law as humanly possible. Natural Lawyers would therefore also have a great deal to say concerning this particular case. ... The Charter and the Constitution that encompasses it are the strongest representations of natural law existing in Canada today. Although natural theorists are known to base their opinions along individual moral guidelines, it can be assumed that most natural lawyers would support the majority of the humanistic rights and freedoms described within the Charter.