What would a legal positivist say?

Question

John Austin, the positivist who is the author of Argument A, draws up his argument attempting to show that the judge is not practicing morality when he disregards the criminal’s claim of immorality towards the death penalty. A natural law theorist would argue against this claim by identifying that although the judge is disregarding morality in this situation, there is a more important consideration the judge must make in order to promote common good. The sovereign had already posited and promulgated the punishment of that action. Being that the sovereign has the proper authority, if the judge were to demonstrate this moral argument for the reasoning, he/she would be using his own moral principle against that of the sovereign. Natural law agrees with using morality and principles; however, they do not agree with changing a law based on individual moral principles. That kind of behavior would have adverse effects because the law would then no longer carry the same amount of authority. Law stands for order, stability, and reliability. Altering it based on one person’s moral objection would be detrimental to law in and of itself. Custom is what attains the force of law. The natural law theorist would then clarify that the argument is not that morality is taken into consideration when making an actual judgment on a case; rather that the law was already posited and created with morality in mind. After it is posited by the sovereign, it is for the betterment of the common good for a judge to abide by that law, since both the criminal him/herself as well as the judge do not have proper de jure authority to object to an already posited punishment of a law.

Answer 1

While "moral naturalism" is sometimes used to refer to any approach to metaethics intended to cohere with naturalism in metaphysics more generally, the label is more usually reserved for naturalistic forms of moral realism according to which there are objective moral facts and properties and these moral facts and properties are natural facts and properties. Views of this kind appeal to many as combining the advantages of naturalism and realism but have seemed to many others to do inadequate justice to central dimensions of our practice with our moral concepts.

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