What Is Legal Positivism

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The separation thesis suggests that the law and morality are distinct in terms of conception. In this regard, the definition of law should be completely freed from moral ideals. Moreover moral considerations must not be included in the definition of legal terms such as legal validity, laws, and legal systems. Legal positivism suggests that there are no moral constraints on the validity of legal rules. The positivist community agrees that it is possible to have legal systems without moral constraints, but they do not agree on whether there are some legal systems that experience such moral constraints. Hart supports the inclusive perspective of positivism which suggests that it is possible for the society to integrate the law with moral constraints. …show more content…
Exclusive positivists argue that the use of moral standards to make a ruling in court leads to the creation of a new law. The law is often subject to different interpretations, and the judges, having full knowledge of the law, make judgments that reflect the right things to do in specific situations. Such decisions become law, whether they were based on legal or moral considerations, as long as they were made within the legal system. In this regard, the law and morality are indeed complementary rather than distinct from each other. Additionally, Fuller provides a comprehensive argument for the morality of law in the book, The Morality of Law, in which he argues that the law is characterised by internal morality based on eight principles: expressing rules in general terms; public promulgation of the rules; rules being prospective in effect; rules must be understandable; consistency of the rules; must be based on powers of the affected parties; should not be changed frequently; and must be administered consistently according to their …show more content…
The reasons for establishing, changing and maintaining laws include moral reasons, e.g. preventing people from killing each other or stealing from each other. These reasons shape the concepts of law; hence law is not separable from morality as suggested by positivists. In the current world, there is a growing concern for the protection of human rights, duties, responsibility and freedom. The ideal role of the government is no longer to maintain peace as suggested by Hobbes, but also to protect the rights and freedoms of citizens as suggested by John Locke. The ultimate goal of the state in democratic systems is to promote the welfare of the people. Based on this moral principle, the people have demonstrated the desire to be involved in decision making processes and policy implementation so that their interests can be fully

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