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11 Cath. Law. 118 (1965)
Civil Disobedience and Natural Law

handle is hein.journals/cathl11 and id is 120 raw text is: CIVIL DISOBEDIENCE AND NATURAL LAW MARK R. MACGUIGAN* T HERE IS A SENSE in which the question of obedience to law is a prob- lem solely for the natural lawyer. The positivist is concerned by hypothesis with the validity and legality of law, not with its efficacy or justice. Validity and legality are purely formal concepts: law is valid, it is legal, if it is enacted or adjudicated into being in the proper form. Efficacy and justice on the other hand, are concerned with the content of the legal rule: a law is efficacious when it is actually being obeyed by the people whose conduct it aims to govern, and it is just when it should be obeyed by them. The natural lawyer is interested in efficacy and justice as well as in validity and legality, and so it would appear that only for him is conformity to law a problem qua jurisprudent or even qua jurist.' For him the ultimate theoretical question in juris- prudence what is law? has as a counterpart at the other end of the scale an ultimate practical question (and one by no means unrelated to the first theoretical question) should this particular law be obeyed? Yet it would seem that to the more sophisticated positivist today, fidelity to law has also become a jurisprudential issue. Professor H. L. A. Hart has recently made the point2 that positivism has a moral as well as an intellectual contribution to make to jurisprudence: one of the *Associate Professor, Faculty of Law, University of Toronto. The natural lawyer is more interested in justice than in efficacy, but in order to know whether a law, even a morally good one, can be borne by a particular people at a particular time, he must also know whether it is or will be efficacious. For example, moralists appear to be reaching the conclusion that a law forbidding pro- fessional boxing would be good, but it is highly doubtful whether it would yet be supported by popular feeling. Interest in the efficacy of law is, of course, considered more characteristic of the sociological jurisprudent than of the natural lawyer. For purposes of this discussion I have assimilated the sociologist's position to that of the naturalist, as both, in contrast to the positivist, have justicistic philosophies. There is a sharp attack on the empty formalism of the strict positivist view on the ground that it is incompatible with the rule of law in democratic society in D'Entr~ves, Legalita e Legittimita, Studi in Onore de Emilio Grosa (1960). 2 Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 620-21 (1958).

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