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Legal positivism vs natural law essay

legal positivism vs natural law essay

provide for an exemption from any sanction that may be attached. Perhaps this seems to be a similar view to Hart's but there is a difference in the sense that although Hart did recognise the need for morality he international relations essay university ranking uk only said that laws which are really "iniquitous" should not be obeyed not all immoral laws. Bentham proposed that there is a difference between what the law in practice was and between what law ought to be and he stated that we as a society should move away from law as it ought to be and move towards law. However, a problem arose in the sense that the perpetrators claimed that they were just following the law and that they were under a legal obligation to follow the Nazi Germany Law, and because law cannot be retrospective it seemed that the perpetrators would. A rule cannot be made before the occurrence of the facts it purports to regulate or govern. Kelsens pure positive LAW, hans Kelsen, an Austrian jurist and philosopher, reiterated Austins idea that the concept of law has no moral connotations whatsoever. But if the governmental challenge is at its optimum intensity, the people may already act effectively, so as not to allow the governmental challenge to succeed and reach its maximum intensity. Hart does not however abandon the principle which was established originally by Bentham and further developed by Austin that legal validity has nothing to do with moral obligations. This was obviously clear by Robert Geoff's speech in the case of Elliot v C 22 where despite strongly opposing the test of 'recklessness' for the purposes of Criminal Damages Act 1971, established by the House of Lords in R v Caldwell 23 and.

legal positivism vs natural law essay

This is not an example of the work written by our professional essay writers. Natural Law, theory / Legal Positivism.

legal positivism vs natural law essay

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As said earlier, this is the idea that the codes of morality are and must be closely tied to the laws created. Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. This principles seems to be contradictory to that of natural law theorists, perhaps what Hart was trying to do is to establish a distinct difference between positivist law and natural law. Perhaps this is the reason that natural lawyers state once such a decision has been made by enacting a positive law by the authority then this implies a duty. According to Hart then if a law is too "iniquitous it will not create a duty. This may have been the best defense yet for the positivist theory of the conceptual independence of law from moral and natural laws. In this kind of situation, only with outside assistance or intervention may the will and power to resist be bargained. Credit should be given to Hart for bringing morality into positive laws and recognising that immoral laws are not laws. Vref1 titleLegal Positivism LawTeacher t dateNovember 2013 accessdate8 September 2018 locationNottingham, UK Reference Copied to Clipboard.