“The great divide between the legal Naturalists and Positivists stems from the supposed dichotomy of law and morality, with the Naturalists emphasizing the overlap thesis; that is to say there is a necessary connection between law and morality. The positivists take a completely different stance and insist on the separability thesis; that the two are mutually exclusive.”
“The doctrine meant that if a statute contravened the basic principle of morality, it was not a moral law but one as not having a legal character e.g. being legally invalid. Therefore, according to Gustav Radbruch, Nazi law would have been invalid. This approach was rejected by Professor Hart in his article ‘Positivism and Separation of Law and Morals’. His argument broadly stated that if the laws made in Nazi Germany, however oppressive or immoral, were in accordance with the rule of recognition, then it was valid law.”
Legal Persons: Natural and Fictitious
Whether or not you consider yourself a legal naturalist or positivist, civil disobedience (non-violent resistance) is our right as sovereign individuals.
Under the eyes of the law, I am natural person. A corporation is a legal person, (an artificial or fictitious person). A corporation and myself are both people. We both have rights and legal characters, although not identical.
What is the distinction with regard to jurisdiction? I am not an entity conceived in commerce, existing as ink on paper, or 0’s and 1’s digital. Common law is for natural people. Commercial law (maritime law) is for persona ficta. Why does a natural person need an IRD (tax) number? Is there a fictitious entity impersonating me, which is liable under commercial law, masquerading as the natural person? What legal chicanery is this? When was this creation made? Certainly not before I was conceived. It must be sometime after that. Was it when I was registered and issued a certificate? My birth certificate. Is that when my fictitious counterpart was created. My CAPITALIZED counterpart. Why would a natural person need an IRD number and bank account to perform labour and take hold of honest money. Where does my P.A.Y.E tax go? I am taxed before I receive the money. What is the “Crown” exactly?
In a nutshell, legal Naturalists strongly believe in the Latin legal proverb ‘Lex iniusta non est lex‘ (an unjust law is no law at all). Sure it could be considered that if a law has not been repealed, it is therefore just and moral. However, rarely is anything so black and white. Personally, I consider legal Naturalism to be concerned with the intrinsic relationship between law and morality, and that if a law is immoral, then it should not be considered relevant. To paraphrase Thomas Jefferson “If a law is unjust, a man is not only right to disobey it, he is obliged to do so“.
Conversely, legal positivism does not consider law to be built upon the tenets of morality. Positivism does however require civil disobedience as a form of check and balance. Anything less would be short of tyranny. I do not blame legal positivism for Hitler. Although it may have provided the legal platform for his rise, it was the duty of the people to see through the propaganda, and to not be sucked into a vortex of blinding ethnic hatred.
I believe that morality and law are not synonymous; to put it simply, the quality of being legal does not intrinsically make it moral. In some cases, most notably and recently in Hitler’s Germany, moral behavior considered illegal was required in Germany to overthrow Hitler, however, immoral behavior that was legal propagated.
Civil disobedience, political awareness, and you
Regardless of your stance on the creation of law, we as the people, have a responsibility to ourselves and our children, to extinguish or enact any law we decide necessary. That is if we are to believe that we live in a free and just society. Recent news would indicate mankind whether willfully, or by coercion, is heading in the opposite direction. It appears individuals in nations historically the champions of freedom, willfully profligate their freedom (privacy) under the guise of security, while other nations new to the concept, are fighting and dying for it. There is a bizarre form of logic circulating currently, that would have you believe people don’t need rights, and that only criminals advocate privacy. If you believe this, I consider you to be an automaton. No more capable of creative independent critical thought than a string of binary zero’s and one’s.
John key, current prime minister of New Zealand, did not give the registered voters a chance to throw the scurrilous bills back in the face of the foreign special interest groups that were so obviously instrumental in their creation. The Copyright (Infringing File Sharing) Amendment Bill was rushed through parliament. The GCSB amendment bill has met stiffer opposition and is currently being debated, but I fear the NZ public is too lazy, too preoccupied on trivial matters to really put the effort into repealing and blocking any laws that are contrary to their interests.
Should I blame the fox for attacking the hens, or the hens for leaving the door open?