Some Analysis And Evaluation To Legal Positivist’ Scriticism Of The Natural Law

In the history of western legal thought, the debate between legal positivism and naturallaw for over200years has always been the focus of academic attention and discussion injurisprudence circles. Being an opponent of natural law, the rise of legal positivism is basedon the criticism to the theory of natural law. The source of any critical ideas is rooted in itsown theoretical basis, legal positivism’s criticism to the natural law is of no exception. Byreviewing the legal positivists’ critical views at different historical periods, we can find that,although the content, the prospective and the strength of the legal positivist’s critical views ofdifferent historical periods are varying from each other, these critical views are marked by thebasic characters of legal positivism, which give vitality to the legal positivism in the fightingagainst the natural law and for holding the fort. These characters are that they never give upthe theory of social facts and the separation theory which are at the very core of legalpositivism. By means of sorting out the legal positivists’ critical views at different historicalperiods, this paper tries to present a dynamic process of the development of legal positivismin about200years, and to get a correct understanding and to position it properly.This paper is composed of five parts.The first part is introduction which is to clarify the development course of legalpositivism, including focus of the contradictory between legal positivism and natural law, andresearch review.The second part mainly expounds the critical views of the early legal positivists andfinds features of these critical views. According to Utilitarian principle, Bentham firmlyopposed the theory of natural right and social contract which he consider may not fit in withlegal reform of western society in the nineteenth century. Austin quite approves of Bentham’sideas against the social contract theory, and he also thinks that there is some confusion aboutsemantic concepts. These critical views cater to the needs of capitalist legal construction inthe nineteenth century，which fully embody the positivism tradition and the conceptions ofscientism.The third part lays emphasis on analyzing the critical views of Hans Kelsen who is legalpositivist of the twentieth century in Austria, and summarizes characteristics of them. Theabstract jurisprudence represented by Hans Kelsen is based on the philosophy of New Kantianism and the philosophy of David Hume. In Kelsen’s eyes, if legal theory really wantsto become a science, it must eliminate any objects which are ouside of experience. Kelsenexpress strong dissatisfaction and blazing opposition to the metaphysical dualism and the wayin which the naturalists add their own subjective value judgments into jurisprudence. Basingon the work that is performed by Bentham and Austin, Kelsen promotes the theory of law tobe more scientific. In Kelsen’s opinion, the theory of natural law had distorted positive law byideology, though it is in the law dress.In the fourth part，the paper mostly demonstrates the critical views of Hart who is themost typical representative of new analytical jurisprudence, and comment their trait. On thebasis of ordinary language philosophy and tradition of early analytical jurisprudence, on theone hand, Hart fiercely protects the fundamental standpoint of legal positivism, bucks againstteleology, and insists on the separation proposition and clearly keeps a distance from thenatural law. On the other hand, Hart has softened the early legal positivists’ stance, byadapting critical strategy, admitting the existence of minimum natural law, and thenadvocating that law actually reflects moral content. It seems that the critical views of Hartmake legal positivism be the Nirvana of the Phoenix, it realizes the innovation and thedevelopment of legal positivism, and also makes legal positivism to be more adapted to theneeds of social reality, and coruscates powerful vitality in practice as well.The last part is conclusion. Legal positivism is not an invariable school of thought. Alongwith the march of the times and the development of academic field, legal positivism absorbsthe advanced achievements from other schools with sticking its own principles. Legalpositivism adapts their critical strategy in the new era, which do not shake the fundamentalstandpoint of against the natural law, refraining from self-deconstruction. Further, legalpositivism could be well suited to the current development of the society. In addition, thereare also limitations that can not be overcome by themselves in the legal positivist’s criticalviews.