Naturalism or natural law posits the existence of a law whose content is set by nature and that therefore has validity everywhere. Natural law assumes that individuals have an intrinsic sense of what is right and wrong, in spite of what the law may say.
Positivism or legal positivism on the contrary gives precedence to the rule of law. Something intrinsically “wrong” is considered “right” if the law endorses it.
A simple analogy of pedestrian crossings at traffic lights can be used to illustrate these concepts. For example, according to naturalism, if the traffic lights show a red man yet there are no cars and it is safe to cross the road, then one should do so. A positivist view however would argue that one should always stick to the law and wait for the man to turn green before crossing.
The tension between these two contrasting approaches towards law are most notoriously debated in the Nuremberg Trials. The series of trials / tribunals which saw the prosecution of prominent members of the political, military and economic leadership of Nazi Germany after its defeat in WW2, were conducted under their own rules of evidence. Based upon no national laws, the Allies are criticized by positivists for making charges that were only defined as "crimes" after they were committed. The Allies defended their position, claiming that the actions of the prominent Nazis were blatant crimes against humanity.
While this is a very surface level description of the famous set of court cases, some interesting questions can certainly be raised. In which situations can natural law be justified? Is natural law ever justified, or does the ambiguity of “right” and “wrong” detract from the plausibility of the approach? Is natural law distorted by “victors’ justice,” whereby a victorious entity hypocritically applies different rules to judge what is right and wrong, and thus exploits and ironically redefines natural law?
I agree this contrast between naturalism and positivism is a major issue when considering cases such as these. I think many people are becoming more naturalist as we look back and view atrocities of the past- but how this naturalist view can interact with the law is a big problem! We want it to be reflected when handing out justice but sometimes only what is legal can be used. But certainly, in cases such as the nuremberg trials, a more natuarlist view should be allowed to be applied above the law- considering the huge extent to which human rights were violated.
ReplyDeleteThis is an awesome post! The Nuremberg and Tokyo trials were pretty farcical, in my opinion. The Allies were actually forced to withdraw many of the charges laid against the Axis, such as bombing urban centres, flattening Tokyo, Dresden, etc, as they were guilty of the same atrocities. Check out:
ReplyDeletehttp://bsalert.com/news/2315/Noam_Chomsky_On_War_Crimes_And_Presidents.html Here Noam Chomsky discusses the ‘operational criterion’ for the Nuremberg laws, which basically were, ‘If the enemy had done it and couldn't show that we had done it then it was a war crime.’ He further argues that if the Nuremberg laws were applied then every single post-war American president would have been hanged for the same or similar crimes.
I think the question ‘in which situations should natural law be justified?’ is an important one. It strikes me that some things should just obvious, like they are natural. For example people should have the right to food and water, decent housing, healthcare, education, a good job etc. Despite these seemingly obvious assumptions we are indoctrinated every day into believing that there are no natural laws entitling us to these things. For example, if you can’t afford health insurance in the US you are not entitled to decent healthcare. Or if you can’t afford your water bill in Wellington they just turn your water off, you don’t get water. Or if you can’t afford to pay New Zealand’s crippling tertiary fees you just don’t receive tertiary education. We are told every day that we are only worth what we can get on the market. If we are unable to sell our labour power to market at a good price, we starve, or settle for a government benefit, and miss out on things that natural law would assert we deserve. I think much of capitalism relies on positivism. The system is inherently unjust, naturally unfair, but we are told every day of our lives that we have to adhere to it.
The pedestrian crossing analogy applies. If a man is starving on the street it naturally feels right to want to help him. Because we are told that it is not our place to help him, the little red light comes on and we ignore him.
PS. My comment should be read to the sound of violins
ReplyDeleteSam O, I'm not sure how much bite the charge of "Victor's Justice" or "hypocrisy" really has. Yes, the Americans bombed Dresden and Hiroshima in a way that can be plausibly described as criminal, and in a just world they would probably have paid for those crimes, but the idea that either everyone who is guilty must be tried or no one must seems very unappealing. What made the Nuremberg trials fair was the fact that it was a trial, where the accused had the right to contest the charges, instead of (what some people were asking for) a summary execution. If the Nazis had won the war they would most likely not have had much of a fair trial for anybody. But it was only because the allies actually won the war that it was even possible to bring somebody to justice, even if not everyone who deserved it did get punished.
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