Different approaches to the definition and understanding of law in the scientific literature are affecting to the interpretation of the legal and illegal facts.
The issue of the moral justification of law takes place in the discussions between the adherents of the theory of natural law and positive law, or juridical naturalism and positivism.
A feature of the modern consideration of the natural law is the postulation of the initial bind between the law and morality. According to the theories of natural law the idea and the nature of the law is such that it must conform to the requirements of morality. But it does not mean that the law and morality are completely coincided.
Within the theory aspects of the natural law the issue on the immorality of law and the bind of the law with immorality could take a place, while the positivism ignores this issue. Natural law has an estimating function in regard of a state law and the legislation. Thus, the value of legal naturalism in the possibilities for the critical analysis of the law and its reforming and amending.
The initial idea of the legal positivism is a sharp distinction between the law and morality. Juridical positivism unveils the combination of norms or behavior standards in a law, established and provided the forcing by the statesmen parties. The law is defined formally – law is what is recognized such as in a given society.
Law is equal to the legislation. Law has an autonomous nature, i.e., law does not depend on morality. Thus, proponents of the juridical positivism believe that the system of law must conform only to its own interests and its own internal logic. In accordance with the theory of natural law there must be a consistence between some more fundamental laws or orders.
By itself, if it exists out of another order, it loses its meaning or becomes an abuse. Hence, the law transforms to the instrument of the state by this state, and the substantive aspect of the standards is not analyzed. The basic criteria of the law making the right fair in the positivism must be its rationality, namely the formal-logical rationality. Hence the absence of the possibility of the law reforming with changing sociohistorical terms, a change in the morality.
In a summary, we can say that the theory of natural law has a great potential unlike the juridical positivism providing a possibility to develop the law creating and law enforcement processes.
Author Sevastyanova Alina