Pros And Cons Of Positivism

1619 Words 7 Pages
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