Natural law and legal positivism | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 50 minutes
Natural law and legal positivism A-Level Law revision introduces two contrasting ways of understanding the relationship between law and morality. OCR requires knowledge of the main legal theories underpinning law, specifically identifying natural law and legal positivism as examples. Natural-law approaches emphasise a connection between law and moral values, while positivist approaches distinguish the legal validity of a rule from whether it is morally good. These theories build directly on law and morals [Law and morals] and morality in a pluralist society [Morality in a pluralist society].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the central idea of natural-law theory.
Explain the central idea of legal positivism.
Distinguish natural-law and positivist approaches to legal validity.
Explain how each approach understands the relationship between law and morality.
Apply the two theories to situations involving morally controversial or apparently unjust laws.
Compare the strengths of the two approaches when analysing the nature of law.
Revision Notes 📚
Why do theories of law and morality matter?
You already know that law and morality are not identical.
A legal rule may be legally enforceable even though people disagree about whether it is morally right. Equally, conduct may be widely regarded as immoral without being legally prohibited.
Natural law and legal positivism take different approaches to this relationship.
At the level required by OCR, the central question is:
Does the legal status of a rule depend upon morality, or can law be identified separately from whether it is morally good?
OCR's specification requires the main legal theories underpinning law, such as legal positivism and natural law.
OCR assessment materials have treated Aristotle, Aquinas and Fuller as examples of natural-law theorists and Bentham, together with Hart and Austin in relevant assessment material, as examples associated with positivist approaches.
The important examination skill is not to memorise a collection of names. It is to understand what the theories say about the relationship between law and morality.
Natural-law theory
Natural law is an approach which sees an important connection between law and morality.
Its central idea is that law should not be understood solely by asking whether a recognised law-making institution has created a rule. Moral principles are relevant to understanding what law ought to be and, in natural-law approaches, to assessing its authority and legitimacy.
A simple OCR-level formulation is:
Natural-law theory connects law with moral principles and treats morality as relevant to judging the quality and authority of law.
This means natural-law theorists are interested in more than:
"Has this rule been legally created?"
They also ask:
"Is this law consistent with appropriate moral principles?"
Natural law and the overlap between law and morality
Natural law therefore emphasises the overlap between law and morality.
This links directly with your previous study of law and morals [Law and morals].
A natural-law approach suggests that there is a meaningful relationship between:
what the law requires;
what morality requires;
whether legal rules can be justified.
OCR assessment material expressly connects natural-law theory with the overlap between law and morals.
Law as more than an official rule
Natural law challenges the idea that identifying a legal rule is the end of the discussion.
Suppose Parliament passes a law through the proper legislative procedure.
A natural-law approach can still ask:
Is the rule morally defensible?
Is it just?
Does it respect important moral principles?
Should a profoundly immoral rule possess the same authority as a morally justified one?
This shows why natural law is particularly useful in Nature of Law essays involving:
morality;
justice;
controversial legal rules;
apparently unjust laws.
Natural law and unjust laws
One of the strongest applications of natural-law reasoning concerns a law which is legally recognised but appears seriously immoral.
Natural law makes morality relevant to the assessment of that rule.
The more severely a law conflicts with fundamental moral standards, the more difficult it becomes, from a natural-law perspective, simply to treat its formal legal status as the only consideration that matters.
⚠️ Be precise here.
Different natural-law theorists develop the relationship between law and morality in different ways. OCR does not require an extensive undergraduate account of every version of natural-law theory.
For H418, focus on the principal contrast:
Natural law emphasises a necessary or important connection between law and moral standards.
Natural-law thinkers identified by OCR
OCR assessment materials identify Aristotle, Aquinas and Fuller as examples of natural-law theorists.
You should recognise those names, but a list of names is not enough.
The useful connection is:
Thinker identified in OCR material | Theory to connect them with |
Aristotle | Natural-law approach |
Aquinas | Natural-law approach |
Fuller | Natural-law approach and the relationship between legality and morality |
The specification does not separately require detailed study of every part of each thinker's wider philosophical system. Keep your knowledge directed towards law, morality and the validity or authority of legal rules.
Aristotle and natural law
OCR assessment materials recognise Aristotle as a natural-law thinker.
For this lesson, Aristotle's importance is as part of the natural-law tradition which connects law with broader ideas about morality and justice.
You do not need an extensive account of Aristotle's wider philosophy to understand the OCR contrast.
Use him to support the principle that natural-law approaches do not regard law as completely detached from moral standards.
Aquinas and natural law
OCR also expressly identifies Aquinas as a natural-law theorist.
Again, the important OCR-level connection is that Aquinas belongs to a tradition in which human law can be assessed against higher moral principles.
This makes his approach fundamentally different from the central positivist idea that a rule's legal validity can be identified separately from its moral quality.
Fuller and natural law
OCR assessment materials also place Fuller among natural-law theorists and specifically recognise an opposition between Fuller and Hart in discussions of law and morality.
Fuller's significance for this topic is that his approach challenges a complete separation between law and morality.
For revision, the safe core point is:
Fuller supports the idea that law cannot be understood entirely without reference to moral considerations connected with legality.
You do not need to turn this lesson into a detailed account of every element of Fuller's jurisprudence.
Legal positivism
Legal positivism takes a contrasting approach.
The central positivist idea is that whether a rule is legally valid can be considered separately from whether the rule is morally good or bad.
A useful OCR-level formulation is:
Legal positivism distinguishes law as it exists from the moral question of whether that law ought to exist.
This does not mean positivists believe morality is unimportant.
It means that:
moral merit is not automatically the test of whether a rule counts as law.
Law and morality can diverge
OCR assessment materials connect positivism with the divergence between law and morals.
This means a positivist can recognise:
a morally good law;
a morally bad law;
a morally controversial law;
while still asking separately whether the rule is legally valid.
This is perhaps the most important distinction to remember.
Positivism and an immoral law
Imagine a legal rule has been validly created through the recognised legal system but is widely regarded as immoral.
A positivist analysis separates two questions:
Is this a valid legal rule?
Is this a morally good rule?
The answers do not have to be the same.
A rule could therefore be:
legally valid but morally objectionable.
This contrasts with natural-law theory, which places morality much closer to the question of legal authority and legitimacy.
Positivist thinkers identified by OCR
OCR assessment materials identify Bentham as a positivist in law and morality questions and identify Bentham, Hart and Austin as positivist theorists in wider Nature of Law material.
At the level required for this lesson:
Thinker identified in OCR material | Theory to connect them with |
Bentham | Legal positivism |
Austin | Legal positivism |
Hart | Legal positivism |
Again, do not gain confidence from simply memorising names.
OCR's examiner reports repeatedly warn that names alone are not credited. You need to use the thinker to explain a relevant legal concept.
Bentham and positivism
OCR specifically identifies Bentham as an example of a positivist theorist in its law and morality mark schemes.
For this lesson, Bentham can therefore be used to support the positivist distinction between:
identifying what the law is;
evaluating whether that law is morally satisfactory.
Detailed study of Bentham's wider philosophy is not required simply to understand this contrast.
Austin and positivism
OCR's assessment materials also recognise Austin as a positivist theorist.
For H418 Nature of Law revision, the essential point is his association with a view of law which can be identified separately from its moral merits.
The specification does not require this lesson to become a detailed study of Austin's complete theory of legal commands.
Hart and positivism
OCR also recognises H. L. A. Hart as a positivist theorist in Nature of Law assessment material.
Hart is especially important because he also appears later in OCR's required Devlin-Hart debate about the legal enforcement of morality.
These are related but distinct uses of Hart.
In this lesson:
Hart → legal positivism and the distinction between law and morality.
Later:
Hart → arguments concerning whether law should enforce morality in the Devlin-Hart debate [The Devlin-Hart debate].
Keeping the two contexts separate will make your essays much clearer.
Natural law and positivism compared
The central contrast can be summarised like this:
Issue | Natural law | Legal positivism |
Relationship between law and morality | Emphasises an important connection | Distinguishes legal validity from moral merit |
Question asked about a rule | Is it legally and morally justified? | Is it legally valid, and separately, is it morally justified? |
Immoral law | Serious immorality creates difficulties for its authority or legitimacy | A law can be legally valid even if morally objectionable |
Overlap/divergence | Emphasises overlap between law and morality | Allows law and morality to diverge |
Examples identified by OCR | Aristotle, Aquinas, Fuller | Bentham, Austin, Hart |
The single most useful memory aid is:
Natural law: connection.Positivism: separation.
This is simplified, but it captures the principal contrast OCR expects you to understand.
Do positivists say law should be immoral?
No.
This is a very common misunderstanding.
Legal positivism does not argue that:
morality is pointless;
judges should behave immorally;
lawmakers should deliberately make unjust laws.
Instead, positivism separates two different questions:
Legal question: Is this rule law?
Moral question: Is this rule good, fair or morally justified?
A positivist may strongly criticise an immoral law while still recognising that it has legal status.
Do natural-law theorists say every legal rule must match everyone's morality?
No.
That would be especially difficult in a pluralist society, where OCR recognises that different groups hold different moral values.
Natural law is about a connection between law and moral principles, not simply about copying whatever moral opinion happens to be most popular.
This distinction matters because popular opinion and moral principle are not necessarily the same thing.
Connecting the theories to pluralism
Your previous lesson on morality in a pluralist society [Morality in a pluralist society] raises an important challenge for natural-law reasoning.
If law should correspond to moral standards, pluralism immediately creates the question:
Whose moral standards should law reflect?
Different sections of society may disagree.
This can make it difficult to determine which moral principles should guide the law.
Legal positivism appears to avoid part of this problem because it permits the legal system to identify what the law is even where society remains deeply divided about whether the rule is moral.
A strength of natural-law theory
Natural law provides a basis for criticising profoundly immoral laws.
It refuses to treat legality as the only issue that matters.
This can be attractive because law has significant power over individuals. A theory which demands moral scrutiny of legal rules can therefore help explain why merely following formal legal procedures may not be sufficient to make a law worthy of respect.
A challenge for natural-law theory
The main difficulty comes from moral disagreement.
In a pluralist society:
people hold different moral values;
moral views can change;
a supposedly universal moral rule may be disputed.
This creates the problem of determining which moral standards should be used to judge law.
OCR specifically expects students to understand the diversity of moral views in pluralist societies, making this an important synoptic criticism.
A strength of legal positivism
Positivism provides clarity between legal validity and moral evaluation.
A court, lawyer or citizen may need to know what the law currently requires even where that law is controversial.
Positivism permits someone to say:
"This is the current legal rule, but I believe the rule is morally wrong and should be changed."
That distinction can provide useful legal certainty.
A challenge for legal positivism
The criticism is that separating legality from morality may appear uncomfortable when dealing with extremely unjust laws.
If legal validity depends upon recognised legal sources rather than moral merit, a profoundly immoral rule may still have to be identified as law.
This creates the question:
Should legal status really be completely separable from moral legitimacy?
That question is one reason natural law and positivism remain useful competing approaches.
A useful hypothetical example
Imagine that Parliament follows all required procedures and creates a new law.
The law is clearly expressed and legally enforceable, but large sections of society regard it as gravely immoral.
Natural-law approach
A natural-law analysis would emphasise the conflict between the legal rule and moral principles.
It would ask whether a law which is fundamentally immoral can possess the same authority or legitimacy as a morally defensible law.
Positivist approach
A positivist analysis would distinguish the questions.
If the rule satisfies the requirements for legal validity, it may be recognised as law even though it is morally objectionable.
The moral criticism can then form the basis for arguing that the law ought to be reformed.
This example shows how the theories can reach different analyses without requiring you to introduce an area of substantive law outside the OCR specification.
Natural law, positivism and judges
The theories can also be applied to judicial decision making.
Suppose judges face an existing legal rule which produces a morally troubling outcome.
A natural-law perspective makes the moral dimension particularly important.
A positivist perspective stresses the distinction between:
what the existing law requires;
whether that legal position is morally desirable.
However, judges still operate within the actual legal system, including:
legislation;
judicial precedent;
statutory interpretation.
This links the theory to topics already studied such as the doctrine of precedent [The doctrine of precedent].
Can judges simply ignore immoral law?
Do not assume that natural-law theory means an English judge can disregard any legal rule they personally consider immoral.
That confuses legal theory with the practical legal powers of a judge.
Judges remain subject to the legal rules and methods you have studied elsewhere in OCR H418.
Natural law helps you analyse the relationship between legality and morality. It is not an additional judicial power allowing judges to set aside any rule on moral grounds.
Theories and legal reform
The distinction also helps explain arguments about changing law.
A positivist may say:
this is the existing valid law;
the law is morally objectionable;
therefore it should be reformed through the appropriate legal process.
A natural-law argument may place stronger emphasis on the inconsistency between the existing rule and moral principles when explaining why reform is needed.
Both approaches can therefore contribute to debate about legal change, but they begin from different theories of the relationship between law and morality.
Theories and the legal enforcement of morality
These theories provide the foundation for your next lesson, the legal enforcement of morality [The legal enforcement of morality].
There is an important distinction:
Natural law and positivism ask: What is the relationship between law and morality?
Legal enforcement of morality asks: When should the legal system turn moral values into enforceable legal rules?
These questions are connected but not identical.
Do not confuse positivism with the Devlin-Hart debate
Another distinction is equally important.
Legal positivism concerns the nature and identification of law.
The Devlin-Hart debate concerns when law should enforce morality.
Hart appears in both contexts, but the questions are different.
This is why OCR treats:
legal positivism and natural law;
legal enforcement of moral values;
the Devlin-Hart debate;
as connected aspects of the wider law and morality topic.
Applying natural law and positivism in Nature of Law essays
OCR Nature of Law essays are synoptic.
Simply writing three paragraphs describing philosophers is not enough.
A stronger structure is:
Identify the theory.
Explain the theory's view of law and morality.
Apply it to the issue in the question.
Use a relevant area of law where appropriate.
Explain what the theory reveals about that area.
Compare it with the competing theoretical approach.
For example:
Theory: Legal positivism separates legal validity from moral merit.
Application: A controversial law can therefore still be legally valid even where there is widespread disagreement about whether it is morally justified.
Comparison: Natural law places much greater importance on the moral quality of the rule.
Analysis: This makes positivism useful for identifying law in a pluralist society, although natural law provides a stronger basis for criticising seriously immoral laws.
That is much stronger than writing:
"Bentham was a positivist. Aristotle was a natural-law theorist."
OCR scope boundary
OCR requires the main legal theories underpinning the law, such as legal positivism and natural law.
OCR assessment materials identify theorists such as:
Aristotle;
Aquinas;
Fuller;
Bentham;
Hart;
Austin.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Natural law | A legal theory which emphasises an important connection between law and moral principles. | Use when arguing that the moral quality of law matters to its authority or legitimacy. |
Legal positivism | A theory which distinguishes the legal validity of a rule from whether that rule is morally good. | Use when explaining how a law may be legally valid but morally objectionable. |
Legal validity | Whether a rule is recognised as law within the legal system. | Compare this with the separate question of moral justification. |
Moral legitimacy | Whether a legal rule can be regarded as morally justified or worthy of authority. | Use when applying natural-law reasoning to an apparently unjust law. |
Divergence | A situation in which legal requirements and moral standards do not coincide. | Use to explain why positivism allows law and morality to be considered separately. |
Hints from the Examiner Reports 💡
Examiner hint: Do not simply list the names of theorists. OCR's 2022 examiner report states that naming a key thinker without explaining the relevant approach did not gain credit. The thinker should be incorporated into the explanation of a concept such as natural law or positivism.
Examiner hint: Theory needs to be connected to the actual question. OCR found that responses containing lengthy explanations of theories but little reference to areas of law studied on the course were unlikely to progress beyond Level 2.
Examiner hint: The 2023 report found that the most effective Nature of Law responses started with the relevant legal issue and then incorporated thinkers and theories, rather than reproducing a memorised morality essay.
Examiner hint: Use natural law and positivism only where they illuminate the issue. OCR specifically noted that material concerning laws and prosecutions in Nazi Germany could illustrate the distinction between natural law and positivism, but would not automatically be relevant to a question on a different issue unless the connection was explained.
Examiner hint: Names are useful only when they help explain the concept. The 2023 report expressly states that candidates should use key thinkers to explain relevant ideas and then, ideally, connect them with an appropriate area of law.
Common Mistakes ⚠️
Mistake: Saying natural law and legal positivism are both theories that law should enforce morality
Why this is incorrect: The theories take different approaches to the relationship between legal validity and morality.
How to improve: Remember: natural law emphasises connection; positivism permits separation.
Mistake: Saying positivists believe morality does not matter
Why this is incorrect: Positivism distinguishes whether a rule is law from whether it ought morally to be law. It does not prevent moral criticism.
How to improve: Use two questions: "Is it legally valid?" and "Is it morally justified?"
Mistake: Saying every immoral rule automatically stops being law under every natural-law theory
Why this is incorrect: This oversimplifies a wider family of theories which OCR requires only at the level of their principal ideas.
How to improve: Say that natural law connects legal authority or legitimacy with moral standards and places the moral quality of a law at the centre of analysis.
Mistake: Memorising theorists without knowing what they demonstrate
Why this is incorrect: OCR examiner reports explicitly warn that names alone do not gain credit.
How to improve: Always write the principle alongside the thinker, for example: "Bentham is identified by OCR as a positivist, illustrating an approach which distinguishes law from its moral merits."
Mistake: Treating legal positivism and the Devlin-Hart debate as the same topic
Why this is incorrect: Legal positivism concerns the relationship between legal validity and morality. The Devlin-Hart debate concerns whether and when law should enforce morality.
How to improve: Keep the questions separate, then connect them where an essay requires it.
Mistake: Using personal morality to decide whether a rule is legally valid
Why this is incorrect: Your own approval or disapproval of a law does not determine its legal status.
How to improve: Separate legal analysis from moral evaluation before comparing the two.
Mistake: Writing an undergraduate philosophy essay
Why this is incorrect: OCR specifies the main legal theories, not a detailed study of every element of Aristotle, Aquinas, Fuller, Bentham, Austin or Hart.
How to improve: Focus on the theories' relationship to law, morality, overlap, divergence and legal validity.
Exam-Style Questions ✍️
Question 1
Identify one legal theory which emphasises a connection between law and morality. (1 mark)
Question 2
Define legal positivism. (2 marks)
Question 3
Explain one difference between natural-law theory and legal positivism. (4 marks)
Question 4
Explain why a positivist could recognise a law as legally valid while also believing that it is morally wrong. (4 marks)
Question 5
Parliament passes a law using the proper legislative process. The law is legally enforceable, but many people believe that it is seriously immoral.
Explain how a natural-law theorist and a legal positivist might approach this situation differently. (6 marks)
Question 6
Explain how pluralism may create a difficulty for natural-law approaches to the relationship between law and morality. (6 marks)
Question 7
A student writes:
"Legal positivism means that lawyers must support every law, even when the law is immoral."
Analyse why this is an inaccurate description of legal positivism. (8 marks)
Question 8
'Law cannot be properly understood without morality.'
Discuss this statement using natural-law and legal-positivist approaches. (20 marks)
Use relevant examples from your full course of study where appropriate.
Answers and Indicative Mark Scheme
Question 1
Natural law. (1 mark)
Question 2
Award up to 2 marks for:
identifying that legal positivism distinguishes law from morality, 1 mark
explaining that legal validity can be considered separately from whether a rule is morally good or bad, 1 mark
Question 3
Award up to 4 marks for a developed distinction including:
natural law emphasises a connection between law and moral principles;
the moral quality of a law is therefore important to assessing its authority or legitimacy;
positivism separates legal validity from moral merit;
a positivist may therefore recognise an immoral rule as legally valid.
Question 4
Award up to 4 marks for explaining that:
positivism separates legal status from moral evaluation;
whether a rule counts as law is therefore a different question from whether it is morally good;
a rule can satisfy the requirements for legal validity;
the same rule can nevertheless be criticised as morally wrong.
Question 5
Award up to 6 marks for:
recognising that the rule has been created through the legal process, 1 mark
explaining that the positivist would treat its legal validity separately from moral criticism, 1 mark
explaining that the law can therefore be legally valid but morally objectionable under a positivist analysis, 1 mark
explaining that natural law gives greater significance to the rule's moral quality, 1 mark
recognising that serious conflict with moral principles would therefore create a problem concerning the law's authority or legitimacy, 1 mark
clearly distinguishing the two approaches, 1 mark
Question 6
Award up to 6 marks for explaining that:
natural law emphasises moral principles;
pluralism means society contains diverse moral views;
people may disagree about which conduct is right or wrong;
this can make it difficult to identify a single moral standard against which law should be judged;
moral values may also change over time;
pluralism therefore creates a challenge when attempting to connect law with shared moral standards.
Question 7
Award up to 8 marks for analysis including:
positivism concerns identification of law;
it distinguishes legal validity from moral merit;
recognising a rule as legally valid does not amount to moral approval;
a positivist can regard an existing law as immoral;
the positivist can argue that the law ought to be changed;
the distinction is therefore between what law is and the moral question of what it ought to be;
morality remains relevant to criticism and reform;
a supported conclusion that positivism does not require moral support for every valid law.
Question 8
20 marks: AO1 8 marks, AO3 12 marks
Indicative content may include:
Knowledge and understanding:
distinction between law and morality;
natural-law theory;
legal positivism;
natural law's emphasis on the relationship between law and moral principles;
positivism's distinction between legal validity and moral merit;
overlap and divergence between law and morality;
Aristotle, Aquinas and Fuller as natural-law theorists identified in OCR materials;
Bentham, Hart and Austin as positivist theorists identified in OCR materials;
pluralism and moral disagreement;
examples from the student's substantive areas of law where relevant.
Analysis and evaluation:
Arguments supporting natural-law reasoning could include:
law exercises significant power and should therefore be capable of moral justification;
morality provides a basis for criticising seriously unjust legal rules;
treating legality alone as sufficient may appear inadequate where laws are profoundly immoral;
the theory reflects the substantial overlap that can exist between legal and moral values.
Challenges to natural law could include:
pluralist societies contain competing moral standards;
it may therefore be difficult to determine which morality law should reflect;
moral attitudes can change;
linking legal validity too closely with disputed morality may create difficulties in identifying what the law currently is.
Arguments supporting positivism could include:
it distinguishes clearly between identifying law and evaluating it;
a person can know what the legal rule is while still criticising it morally;
this is particularly useful where society remains divided about morality;
immoral laws can be identified as legally valid while becoming the subject of arguments for reform.
Challenges to positivism could include:
separating law and morality may appear unsatisfactory when legal rules are gravely unjust;
formal legal validity may therefore fail to answer important questions about whether law deserves moral authority.
A strong conclusion should recognise that the theories answer slightly different concerns. Positivism offers a clearer method of separating legal status from moral disagreement, while natural law emphasises that law's moral quality cannot simply be ignored when assessing its legitimacy.
OCR's examiner reports make the examination technique equally clear: explain the theory accurately, apply it to the precise issue in the question, and use thinkers to illuminate the argument rather than treating their names as a substitute for analysis.
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