This week in Jurisprudence we started on the topic of legal positivism. For those who are not so legally inclined, this is a particular approach to interpretation of laws. Basically, it means that a law should be interpreted as it was posited or originally written. The opposite of positivism is natural law, which is very much based on morals.
To put this all into perspective, we discussed the case of a woman in Germany during the Nazi regime. For whatever reason, she became sick of her husband and one day when he complained about the Nazis she reported him, knowing very well that he would be severely punished. Most likely killed.
Instead, the husband was sent to fight on the Eastern front- a fate seen as worse than death for some- and miraculously survived the war.
The issue arose later on, when the Nuremberg trials were taking place. The question was whether the wife could be convicted of attempted murder. She would have argued that she couldn’t on the basis that she had been adhering to the law at the time, Nazi law. On one hand, this would have made sense but it would have undeniably set an alarming precedent for the rest of the trials. Were the officers and soldiers that operated the concentration camps not following the word of the law?
It all comes down to the approach taken. I, myself, tend to favour positivism as a great number of problems arise when morality comes into conflict with the written law. I’m not saying that morality is not important but its relationship with the law should be heavily restricted when morality is such a nebulous concept. In the past homosexuality was seen as immoral and was, therefore, deemed to be illegal. This just demonstrates how liable morality is to change.
It’s situations like that, when the consequence of ‘morality’ is to infringe the rights of one particular group of people, that make me think that positivism is by far the better of the two approaches. A legislature can be as descriptive as it wants with it’s law making but when it comes down to interpreting legislation with a view to what is seen as ‘moral’ then we run the risk of only representing the interests of the majority at best and completely alienating the minority at worst.