Positivism and the separation of law and morals essay
Even if every law always does one kind of justice formal justice; justice according to lawthis does not entail that it does every kind of justice. Finnis, John First, discretionary judgments are not arbitrary: they are guided by merit-based considerations, and they may also be guided by law even though not fully determined by it -- judges may be empowered to make certain decisions and yet under a legal duty to make them in a particular way, say, in conformity with the spirit of preexisting law or with certain moral principles Razpp.
Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable.
This does not presuppose that justice is the only, or even the first, virtue of a legal system. This thought sits uneasily with other doctrines of importance to his theory.
Legal positivism pdf
Cambridge: Cambridge University Press. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. There are complex questions here, but some advance may be made by noticing that Kelsen's alternatives are a false dichotomy. If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out. Those are source-based matters, not moral ones. For instance, it is possible that moral value derives from the sheer existence of law Raz , If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences, those who have taken on board Quinian holisms, Kuhnian paradigms, or Foucauldian espistemes, may suppose that positivism should be rejected a priori, as promising something that no theory can deliver. Although law does not necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. Raz, Joseph . Law's Empire. The Autonomy of Law. Hart believes the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims.
This claim has appealed to several positivists, including Bentham and Hart. Although at that point it is unclear how their view would differ from Dworkin's.
It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community.
For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief.
This is a general truth about norms. But they regard these as part of the non-legal material that is necessary for, and part of, every legal system.
Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing.
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