Which is correct? Legal positivism or natural law?
In the You Tube video below, Jeffery Kaplan presents a clear and compelling explanation of a legal theory called Legal Positivism (lp) and the differences between Natural Law and Legal Positivism . Legal positivism is usually presented to third year law students and according to Kaplan can be complicated. However, Kaplan’s presentation is clear. It is easy to understand.
A good example of lp is a dollar bill. The dollar bill is a piece of paper. It has no value in and of itself. If the human race disappeared tomorrow, the bill still would exist but it has no value. It’s legitimacy is held by the value people place on it. The bill is legal currency and is value is in what we can trade the bill for.
A law has its usefulness in how people perceive it. The more people flout a law, the less useful it becomes. If enough people flout a law, it soon becomes irrelevant. If we replace the dollar bill with a Penny, it is easy to see the point. Most people see little value in a Penny. That perhaps is one reason there is talk of taking the Penny out of circulation.
On the other hand, a natural law is similar to lp with the addition of a moral basis for that law. A good example is Martin Luther King saying that an unjust Law is not a law because it is not rooted in a moral basis. Southern Segregation laws in the 1950s are good examples of unjust laws. They are like the dollar bills in that their value or usefulness is only based on how strongly people hold to them. King says these laws are unjust, immoral laws because there is no moral basis underpinning them.
Therefore, King is free to disregard an unjust law because it is not really a law, because there is no moral basis to them. I cannot but help relate this concept to the many unjust laws red states are imposing on LBGTQ people. Like the Nazis at the Nuremberg trials who tried to justify the camps and gassing of six-million Jews, the Nuremberg trials used the concept of natural laws, not lp laws.
In the current rash of LBGTQ laws being passed, perhaps deliberately flouting these laws can weaken and destroy them. If enough people ignore them as well as fight them, perhaps they too will go the way of the dodo bird. We can hope.
https://youtu.be/hWsw2Wai9BI
King, Matin Luther, Notes From Birmingham Jail
Another good example is the Supreme Court, with a single decision, removing the protection of abortion from Roe versus Wade after so many years of its standing. Since that ruling, the red states have imposed more restrictive laws against abortion and family planning. Worst of all, even though polls show that a great majority of Americans want the Supreme Court and legislators out of decisions a young woman needs to make with her doctor, the Congress has not acted, primarily because of the Republicans unwillingness to give women their just status as equals to men in every respect.
Ron