Natural Law And Legal Positivism

Philosophical thought provides the infrastructure that allows society to author moral laws. While morality may be the aim, other variables can cause these laws to become corrupt. The urge for power is one of many, recurring, variables that infect morality. During these times of ‘infection,’ society must contest those who oppose just laws. In order to shine a light on unjust laws, laws are bound to be broken. It is not only lawful to break unjust laws, but the duty of the people to speak up and be a voice for change. It is critical, during these times, to work towards equilibrium with the goal to change the law. Regardless of the circumstances, it is lawful to break unjust laws with the goal to make them just again.

Discerning good from evil is a particularly common theme in the present society, considering that it basically stands as a storyline for a series of books, motion pictures, video games, and similar concepts. Moreover, most of these products set clear definitions of the difference between good and evil by focusing on portraying evil as being associated with stereotypes. Similarly, good is associated with ideas such as honesty, the color white, or beauty, considering that these are stereotypes generally associated with the forces of good. Even with this, such stereotypes have made it difficult for people to have a complex understanding of the concept of morality.

Legal positivism is generally based on the principle that Law and morality is distinct and that the validity of a rule depends more on its sources, while Natural law would be more inclined to favour features of reasonableness and the link between morality and law. There are two predominant groups of legal theorists being, Natural law theorists and Positive law theorists, John Austin and HLA Hart

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

The Law of Nature is discussed greatly in the book Mere Christianity of C. S. Lewis, who asserts that it is the Law of Nature which makes humans obligated to do the right thing. According to Lewis, this law can also be referred as The Real Morality or the Standard to which all people follow, and which people use to evaluate their and others’ behaviors. The Law of Nature tells the people which circumstance is appropriate to execute certain actions, and which situation is not suitable for certain behavior. For instance, in every human, there is a warrior trait, which is said to be necessary by the Law of Nature in order to protect oneself against life-threatening beings, but to be wrong when it is used to injure the innocent people. However, the Law of Nature functions beyond the machinery of evaluating

Since the spoken word, hundreds of philosophers have defined law in different ways. Philosophy allows people to study the nature of people’s beliefs which can differ over time. Not even the law is exempt from the opinions of philosophers. Seeing law in different ways allows people to come to different conclusions about legal cases. The Fugitive Slave Law was a controversial law in American history, which allowed slave-owners to capture their slaves who have fled north to free states. Once, jurors tried a group of emancipators in Boston for helping an escaped slave flee to Canada. These emancipators challenged the Fugitive Slave Law in United States v Morris. According to the Fugitive Slave Law, helping an escaped slave is in violation

St. Thomas Aquinas argues that an “an unjust law is no law at all.” (Aquinas in Dimock, ed., 2002, p.19) However, Aquinas also acknowledges that a human lawgiver may promulgate a command that has the form of law, and is enforced like a law, yet is unjust. This observation leads to the realization that these are two inconsistent claims. Yet Aquinas believes that these inconstancies can be reconciled. In Aquinas’ view an unjust law is not a law but yet is also able to be issued as law and imposed as law.

Are we naturally moral creatures? Do we always act towards the common good of others? I am positive that we do not, and in fact, as much as society wants to, we go against our morals and lead with our ‘feelings’. These feelings may feel right, but it doesn’t mean they will lead you in the right path to fulfil your ultimate end, true happiness. Hitler was a passionate man driven by feelings, but what he felt and did during the World War Two era was not for the sake of the common good, and was not morally right. In today’s society we often struggle between what is legally right and what is

Law and morality work together to guide our behavior; while law does it by punishing us if we do something wrong, morality does it through incentives. In their articles, both H.L.A Hart in “Positivism and the Separation of Law and Morals,” and Lon Fuller’s reply to professor Hart in “Positivism and Fidelity to Law,” discuss the concept of law post world war II Germany and their re-imagining of natural law as put forth by Gustav Radbruch’s theory. In this paper, I hope to show how both law and morality is needed to create just rules, more specifically drawing from the “grudge informer” case mentioned in Hart’s article. First, I will explain the dilemma of the “grudge informer” case and the contradicting theory laid down by Radbrunch’s.

Hart promotes the need for a clear distinction between law and morality on two levels. Firstly the Social and hermeneutic level in regards to both law and morality sharing vocabulary in both structure and function- showing that in many societies legal rules will match their moral rules. Second a logic and hypothetical level – Hart believes in the possibility of a legal system existing without the influence of morality as there are cases were legal systems do not match the moral grounds of society.( see Austins command theory and the idea of one sovereign ruling all) (SOURCE)

John Finnis, an Australian legal philosopher has tried to resurrect the natural law tradition in moral philosophy and law since the mid-1960s. He tries to offer a "neo-Aquinian" natural law philosophy which does not presuppose a divine being. By focusing attention on goods rather than a single Good, Finnis skilfully articulates what he calls a theory of moral action for our day. Or, in other words, he seeks a theory of how to live well. Finnis identifies a number of equally valuable basic goods or ends, given human nature, there are seven. Three are substantive, existing prior to action and four are reflexive which is depending on our choices.

Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several

Since we were kids and became conscious of our surrounding, our parents and grandparents instilled in us an awareness of what is right and wrong. In other words, it is a trait of all human beings and fosters from our desire to get along with each other to live a harmonious life. Laws are a set of rules and behaviors set by governments that society illustrate on what people can or cannot do. The purpose of this paper is three-fold: it will identify and define what distinguishes law from ethics and what similarities they share. The second is an analysis of examples of where law and ethics either meet or diverge. Third is the role where law and ethics either meet or diverge.

Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should