The concept of ‘law’ has proven itself a tricky one to articulate. Despite its relevance within society, it is hard to condense the idea of law down to its core tenets. In their quest for a concise definition, legal theorists have approached law from different angles, and have tended to divide themselves into two groups – those who believe that any summation of law must include reference to morality, and those who believe that the idea of law either can or must be completely distinguished from any moral considerations. This essay will consider the views of hard and soft legal positivists Joseph Raz and H.L.A. Hart, and natural law theorist Thomas Aquinas, in order to argue that, while all of these theories capture something of the relationship
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In defining the extent to which law is a matter of social fact, for example, is it possible that law can be entirely determined by social factors, the pedigree of law traceable via social rules? Or must it be acknowledged that societies themselves defer to an underlying morality that influences law regardless of its social pedigree? There are currently three schools of thought on these questions: natural law theory, hard legal positivism, and soft legal …show more content…
For example, when judges rule on cases which involve weighing up several legal rules, they exercise their discretionary abilities to find a course of action that they feel is the best. But these ‘moral’ issues, the soft positivist proposes, are no more than social attitudes and norms; morality does not transcend a society. The laws allowing slavery would be deemed evil today, while at the time they reflected what was socially acceptable.
Hard positivism, defended by Joseph Raz , maintains that law and morality not only need not be connected, they must not be connected. The concept of law can only be explained without any reference to morality at all.
The reasoning behind this idea is that law must be authoritative. A key way to identify ‘law’ is that it openly claims this authority – which in turn provides the incentive to act on it. But for law to be successful, it must be able to be followed without any deliberations on the reasoning behind it. Raz thus distinguishes between the reasoning behind a law, which may involve consideration of its moral merits, and the law itself, which, by virtue of its need to have a genuine claim to authority, must not incorporate any moral
In defining the extent to which law is a matter of social fact, for example, is it possible that law can be entirely determined by social factors, the pedigree of law traceable via social rules? Or must it be acknowledged that societies themselves defer to an underlying morality that influences law regardless of its social pedigree? There are currently three schools of thought on these questions: natural law theory, hard legal positivism, and soft legal …show more content…
For example, when judges rule on cases which involve weighing up several legal rules, they exercise their discretionary abilities to find a course of action that they feel is the best. But these ‘moral’ issues, the soft positivist proposes, are no more than social attitudes and norms; morality does not transcend a society. The laws allowing slavery would be deemed evil today, while at the time they reflected what was socially acceptable.
Hard positivism, defended by Joseph Raz , maintains that law and morality not only need not be connected, they must not be connected. The concept of law can only be explained without any reference to morality at all.
The reasoning behind this idea is that law must be authoritative. A key way to identify ‘law’ is that it openly claims this authority – which in turn provides the incentive to act on it. But for law to be successful, it must be able to be followed without any deliberations on the reasoning behind it. Raz thus distinguishes between the reasoning behind a law, which may involve consideration of its moral merits, and the law itself, which, by virtue of its need to have a genuine claim to authority, must not incorporate any moral