Contemporary positivists and positivists of yore argue that natural law theorists hold that there is a necessary connection between law and morality. This argument as John Finnis pointed out, is a strawman. The main pursuit of positivists has been the separation of law from morality as there is no necessary connection between the two but Finnis argues that even the classical natural law theorists affirmed this proposition. However, it was a reaction against this necessary connection that positivism emerged with its proponents arguing that law is what has been posited and law is not derived from morality. Since positivism emerged as a challenge to natural law, it begs the question as to whether this challenge can be successful because the very position of natural law has been misunderstood.
What can be said with certitude is that natural law theorising has seen some changes. Modern natural law theorists like Finnis and Fuller have discarded the notion of a deity as was the centrepiece of classical natural law theorising. Grotius asserted that natural law will subsist even if God did not exist-etiamsi daremus non esse Deum. Finnis argues that the main concern of natural law theory rather is, how enacting positive law can create moral obligations which did not exist until the moment of enactment. However far the modern natural theorists try to distance themselves from the classical natural theorists, valid objections are still made against them.
I shall begin this essay by exploring the origins of morality, combing through relevant philosophical literature and present the extent of its attachment to or detachment from law. As both natural law and positivism are not without incoherence and difficulties as I shall show, there is no reason why they should be uncritically accepted in our legal system. The way forward rather is what I have termed Legal Consciencism which has its roots in the Ghanaian context and takes its content from the Ghanaian conscience. This shall result in law being an object of development and wellbeing of the people, which are the very reasons for law’s existence.