1. Is natural law law?

The question

Two sentences that are not the same: "What is law?" and "What ought to be law?" Natural lawyers run them together. They say a wicked rule, or a rule that contradicts reason or God's law or human dignity, is not law at all. Positivists pull them apart. They say a wicked rule can still be law, and that calling it law does not mean it ought to be obeyed.

A lecture answer that begins "I believe" is a start, not an authority. The marks come from naming the theories, stating them fairly, and then testing them on Sierra Leone materials. Lanbuk does not adopt the conclusion that natural law "is not law" as a proposition of the law of Sierra Leone.

What a natural lawyer claims

A higher standard: There is a measure of justice that does not depend on a parliament having voted for it. Cicero and Aquinas are the old statements. Later writers, including John Finnis, put the claim in secular terms: law is an ordinance of reason, for the common good, made by whoever has charge of the community, and promulgated. A secret punishment, or a rule aimed only at cruelty, fails that test for a natural lawyer.

Why it attracts: It explains why people say that a statute can be legal and still be wrong. It also explains why bills of rights are written. The drafter thinks some claims, life, liberty, a hearing, exist before the statute that protects them.

The difficulty: People disagree about the content. One community's moral rule is another's indifference. If each person can declare a statute void because it offends their own conscience, courts have no shared test. That is the positivist's objection, and it is a real one.

Bentham

Utility, not nature: Jeremy Bentham judged rules by their consequences for happiness, not by an appeal to nature. In An Introduction to the Principles of Morals and Legislation he treated talk of a law of nature, of right reason, or of an eternal fitness of things, as a way of offering the speaker's own likes and dislikes as if they were a standard outside the speaker.

Natural rights: In Anarchical Fallacies he called natural rights "nonsense upon stilts". The phrase is an attack on rights claimed as existing before any law, not a decision of a court. A lecture that shortens him to "private opinion in disguise" is in the same neighbourhood. Use the famous phrase you can place, and do not invent a page number.

Command: Bentham also thought of law as a command of a sovereign. The point for this question is the separation. An appeal to nature does not, for him, answer the question what the law is.

Austin

The Province of Jurisprudence Determined: John Austin, writing in 1832, defined law, strictly so called, as a command of a sovereign, backed by a sanction, addressed to subjects who are in a habit of obedience. The sovereign is the person or body whom the bulk of the society habitually obeys, and who does not habitually obey anyone else.

Sanction: For Austin, the chance of evil if one disobeys is part of what makes a command a law. A lecture that says "whatever is not punishable is not law" is a crude version of that idea. Austin's sanction is wider than a criminal sentence. It is still too narrow for modern law. A power to make a will, or a rule that says a marriage is valid, is law even though nobody is "punished" for using it.

Do not merge him with Bentham: Both are positivists. Bentham's target in the natural-rights essays is moral language used as a trump. Austin's target is a definition of law that will let a lawyer identify the rule in force. Quote them for different jobs.

Where the short essay goes wrong

Pork and punishment: A lecture example says that in a Muslim society a religious bar on pork is not law unless it is enacted, because a person who eats it cannot be punished. The distinction is right: a religious or moral norm is not, by that fact alone, a rule of the legal system. The punishment test is too strong. Plenty of legal rules are not criminal offences. And a religious norm can be enacted, as family and criminal statutes sometimes enact it. When it is enacted, the positivist calls it law because of the enactment, not because it was moral first.

"Positive law walks within the walls of natural law": That sentence tries to have both theories at once. It can be a moral hope. It is not a description of how to find the rule. A positivist can agree that law-makers ought to respect dignity, and still insist that an unjust Act remains the Act until it is repealed or struck down under a higher legal rule.

The Bible and the common law: "Thou shalt not kill" is not the source of the offence of murder in Sierra Leone. Murder is an offence because the received criminal law and local statutes make it one. The moral rule may explain why the offence exists. It is not the citation.

What Sierra Leone law actually does

A positive system that has enacted moral claims: Chapter III of the 1991 Constitution states fundamental rights. Section 28 makes them enforceable in the High Court. Section 171(15) makes the Constitution supreme over other law. A judge who refuses to apply an Act because it contradicts a right is not applying a private conscience. The judge is applying a higher enacted rule. That is still positivism, with a constitution at the top.

Natural law is not thereby "the law": The rights are law because the Constitution says so. A student who thinks a further, unwritten natural law can strike down the Constitution itself has left the legal system. There is no court in Sierra Leone with that power.

Custom: Section 170(2) and (3) make customary law law for the communities to which it applies. Custom is a social fact the constitution recognises. It is not natural law. A custom that fails the statutory repugnancy limit is refused because a legal test says so.

How to write the answer

Define both: Natural law claims a moral test for validity. Positivism, in Austin's version, identifies law by command, sovereign and sanction, and in the simpler classroom version by the sources the system itself lists.

Give the objection: If natural law is whatever the speaker believes, it is not a stable test. Bentham's attack belongs here.

Give the reply: Positivism can sound as if it blesses wicked statutes. The reply available in Sierra Leone is not "therefore natural law is the real law". It is that this system has put some moral claims into the Constitution, and judges enforce those claims as constitutional law.

A last sentence that earns the mark: Natural law is a theory of what law ought to be. It becomes law in Sierra Leone only when a source in section 170, or the Constitution itself, adopts it.