Pros And Cons Of Positivism

Great Essays
In “Legal Realism, Critical Legal Studies, and Dworkin”, realism highlights the challenges and negative qualities that Positivism encompasses, not only through criticism but a detailed explanation of an alternate perspective of how the law should be. Hart then responds to these criticisms that point out underlying flaws in the realists views, which indicate his modern view on Positivism and how it has evolved from a better known classic version used previously. Even though Hart does defend Legal Positivism, he acknowledges the growth and development that must occur in order for it to successfully capture the structure of law that needs to be in place in order for a society to function in a civilized manner. Even though Hart’s version of a legal …show more content…
Yet, he does defend his own theory of what Positivism should look like, which does take into account that laws are intertwined with “ethical principles”, and are not simply just rules consequently followed by punishment. This indicates a more modernized Positivism that reflects some of what the Realists mention, in that the flaws discussed previously in a classic Positivist system, are in fact flaws.
Question 5: In “Positivism and Fidelity to Law”, Fuller discusses the importance of fidelity to law, which is a commonly known ideal illustrated by Hart. Fuller shares a wide range of opinions that depict the underlying messages and tones from Hart, who states boldly that Legal Positivism is the only way to achieve fidelity to the law. In many ways, Fuller disagrees with Hart and states that only a legal naturalist way can reach this standard. In truth, Fuller discussed a more comprehensive legal system that consists of both legal positivist elements, which ample consideration of naturalistic
…show more content…
In having the law intertwined with morality, it creates a legal system based on inner morality, which creates a sense of duty to follow it. When he suggests that a legal system has 8 core principles, there is already an element of morality, fairness, and consistency that would promote fidelity to the law at its highest regard. Fuller makes sure to mention that he is against former views of Naturalism that suggest the laws are derived from a higher power such as God, which also veer away from his point that people need to have a certain responsibility for the creation of laws in order to follow them. Fuller enables a part of Hart’s argument when he says that “a good law is moral and moral is good”, so if we have good order, it means that we have moral order. Consequently there is some overlap between the two

Related Documents

  • Superior Essays

    However, the extent to how active a role a judge takes is contingent on what we conceptualise as the law. These are influenced by our choices in public law, politics, and the functions of institutions. As a consequence, this shapes what constitutes a judicial duty, and hence, corresponds with different roles for the courts in society. If we take the law from a realist perspective, then the role of lawyers is prediction, and judges have a highly persuasive and creative role in shaping the law for socially useful behaviour. Yet, if the law is positivist, then arguably we are more inclined to Faithful Agent theory.…

    • 1728 Words
    • 7 Pages
    Superior Essays
  • Great Essays

    Law and Morality: Dworkin disagrees with Hart’s separation of laws and morality, but he says that following rules is an important principle itself and is backed by an institutional right to have one’s case decided by a court acting on established rules. • This means that it is illegitimate for judges to rely on their own subjective preferences or moral views or advance their own idea of the social good. • Instead they must rely on the background moral principles that are already embedded in the full set of legal materials to hand. Right Answer Thesis: Dworkin also maintains that there is a ‘right answer’ for every hard case, even when there are no rules to cover it. He says that the right answer is the only answer that can be reached by correct legal reasoning, which he argues consists of an analysis…

    • 1259 Words
    • 6 Pages
    Great Essays
  • Superior Essays

    Dual Foundations of Law One of the more interesting aspects of law in general is how the subject both evolves and is consistently marked by debate on multiple levels. As ideologies in a society change, so too does the law follow, as witnessed by the legal actions prompted by women’s suffrage, the civil rights movement, and a vast range of other social and political issues. As this occurs, however, the debate invariably ensues as to the moral correctness of any potential change. Some, like Thomas Aquinas, insist that an adherence to morality is essential to ensure validity of law. Others, like H. L. A. Hart, are legal positivists who attach meaning to law apart from any moral platform or focus.…

    • 945 Words
    • 4 Pages
    Superior Essays
  • Great Essays

    Proposition: Hart argues that we conceptualized the Grudge informer case by maintaining unjust law is still a law, but perhaps so unjust that it should be disobeyed: On the one hand, we will begin our analysis by explaining the first part of the proposition “Hart argues that we conceptualized the Grudge informer case by maintaining unjust law is still a law”. In order to understand why according to him an unjust law is still a law, it is necessary to remind briefly his view on the connection between law and morality. As a matter of fact, it is obvious that as Hart is a legal positivist, he is claiming that there is not a necessary connection between law and morality but a contingent one . Nevertheless, even if there is a possible connection…

    • 2196 Words
    • 9 Pages
    Great Essays
  • Great Essays

    In this regard, the realist have grounds to claim that their movement is misunderstood. Criticism of legal formalism by legal-realist can be justified by the ultimate purpose of the realists. Unlike legal formalist that wanted to maintain a strict distinction between law as it is and law as it ought to be, the purpose of legal realist being the reform of the law, is that they believed that the ‘ought’ of the law could not be effectively advanced until the ‘is’ was clearly understood. Legal realist wanted people in the legal profession to spend more time thinking about how law appears on the ground: to citizens for whom the law only means prediction of what the trial judge will do in their…

    • 2094 Words
    • 9 Pages
    Great Essays
  • Improved Essays

    What is legal is not necessarily legitimate. Considering the formal properties of law, Habermas argues that they have an implicit moral dimension from which law derives its legitimacy. First, the systematization of law by professional jurists contributes to legitimacy only when it takes moral justifications into account. In positive law, social norms have lost their validity based on custom. Because of this, legal norms now need to be founded on moral principles.…

    • 734 Words
    • 3 Pages
    Improved Essays
  • Improved Essays

    He stated: “[a] mere respect for constituted authority must not be confused with fidelity to law”. This is meant in a way that demonstrates the fierce divide between recognizing that a law exists and is valid versus the instinct some individuals have to be abiding by morally acceptable laws. For example, if one were to take the laws at face value during times of severe injustice to one party that is legally acceptable a citizen would just have to accept it as it is. However, the solution to this critique is to simply note that there is a difference between morality and ethics. Ethically, a judge can rule against a law, or lawyers can appeal a law and have it overturned in the Supreme Court.…

    • 1077 Words
    • 5 Pages
    Improved Essays
  • Superior Essays

    Introduction Fuller makes a statement that the humanity with moral life would not be exhausted seemingly even though natural laws binds upon any of the most essential human actions apart from. What leads Fuller to describe those subjects as shown above as external morality of law? Before determining how’s Fuller natural law theory work, one have to make a brief summary of the Hart and Fuller debate to understand the position of them. Then, examine the distinction between the law’s internal and external law critically. It is necessary to consider the concept of the both moralities, how’s the two moralities work in legal system and whether Fuller has clarified them.…

    • 2137 Words
    • 9 Pages
    Superior Essays
  • Great Essays

    Daniela Dicheva HUM 225 Professor Marek Suchocki 1/17/2015 Why should I be moral? Law and morality belong to the spiritual realm of man, they are manifestations of conscious beginning. Too often placed between them insurmountable. In other cases, is identified by the morality of the representatives of the legal and moral philosophy. To clarify the problem it is necessary to identify both common interests and differences between the two phenomena.…

    • 1095 Words
    • 5 Pages
    Great Essays
  • Great Essays

    Community A are proposing to follow a version Dworkin’s theory of ‘law as integrity’. Attempting to give value to the community and the individual. However this can be criticised because interpretation of the law becomes superhuman, relying on the assumption there is coherence in the communities previous decisions. This is something the community should consider when proceeding. The Community also places importance on the court developing legal principles over time through common law.…

    • 1190 Words
    • 5 Pages
    Great Essays