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Legal Positivism Essay Examples - New York essay

One might hazard the following guess. Some of these philosophersthink that constitutional law expresses the ultimate criteria of legalvalidity: because unjust remedies are constitutionally invalid and voidab initio, legally speaking they never existed (Waluchow).That being so, morality sometimes determines the existence or contentof law. If this is the underlying intuition, it is misleading, for therule of recognition is not to be found in constitutions. The rule ofrecognition is the ultimate criterion (or set of criteria) oflegal validity. If one knows what the constitution of a country is, oneknows some of its law; but one may know what the rule of recognition iswithout knowing any of its laws. You may know that acts of theBundestag are a source of law in Germany but not be able to name orinterpret a single one of them. And constitutional law is itselfsubject to the ultimate criteria of systemic validity. Whethera statute, decision or convention is part of a country's constitutioncan only be determined by applying the rule of recognition. Theprovisions of the 14th Amendment to the U.S. constitution,for example, are not the rule of recognition in the U.S., for there isan intra-systemic answer to the question why that Amendment is validlaw. The U.S. constitution, like that of all other countries, is lawonly because it was created in ways provided by law (through amendmentor court decision) or in ways that came to be accepted as creating law(by constitutional convention and custom). Constitutional cases thusraise no philosophical issue not already present in ordinary statutoryinterpretation, where inclusive positivists seem content with thetheory of judicial discretion. It is, of course, open to them to adopta unified view and treat every explicit or implicit legalreference to morality -- in cases, statutes, constitutions, and customs-- as establishing moral tests for the existence of law. (Although atthat point it is unclear how their view would differ from Dworkin's.)So we should consider the wider question: why not regard as laweverything referred to by law?

Leiter, Brian. 2001. “Legal Realism and Legal Positivism Reconsidered” in  111 (January): 278-301.

The true relationship between the natural order (the realm of natural laws and of the natural moral law) and the supernatural order (the realm of divine grace) is clearly and concisely set forth by Oswald von Nell-Breuning, S.J.: “Elevation to supernature leaves human nature unchanged in principle. Therefore, human nature retains its full value as a source of knowledge for social order. All principles for the structural plan of human society are impressed upon human nature by God, and remain so; therefore, they can be recognized in and deduced from this human nature with certainty. This is also true of man exalted by grace or abased by sin. Just as grace elevates man above his mere nature as a being without taking away anything from his human nature, so sin has not changed the condition of human nature into something else. True enough, there is no longer a purely natural order since God has introduced a supernatural order and has destined man for a supernatural goal; in fact, there never existed a man in the purely natural order. (Thus the sinner can miss the supernatural goal, but he cannot nullify his destiny for this goal.) The natural order is consummated by the supernatural order in such a way that it remains fully unchanged. That is why the natural order, although we can separate it from the actually given supernatural order only by abstract thinking, is not merely a fancy, but a living reality whose misappreciation, denial, or debasement at the same time not only misappreciates, denies, and debases supernature, but actually deprives it of its foundation, thus making it untenable” ( trans. by Bernard W. Dempsey, S.J. [Milwaukee: Bruce Publishing Co., 1936–37], p. 17, note).

FREE Critique of Legal Positivism Essay - Example Essays

Legal positivism has a long history and a broad influence. Harts Legal Philosophy William C.

All law is first and foremost an act of reason. Even technically the deliberation precedes the decree. Yet law is also a decree of the will. The answer to the question about the nature of law is thus the answer to the question of the relationship between intellect and will. And the answer to this decides the question of whether a natural law is possible at all. The historical theories of the nature of law down to the present time cover the whole range of the antithesis: Law is reason—law is will. Besides, the nature of the law provides the basis for differentiating forms of government, and it renders philosophy of law possible or impossible.

The Christian philosophy of law, however, absolutely demands the positive law. And if it declares reasonableness to be an essential note of the concept of law, it can still, with St. Thomas, characterize only the absolutely unreasonable law, i.e., one that is at variance with the natural law, as savoring of lawlessness rather than of law. But since order is a very great good, just as is the will of the state which realizes and preserves this order, so along with the demand, addressed to the lawmaker, for the reasonableness of laws goes a demand addressed to the subjects to preserve the great good of order even when a particular law cannot be entirely justified before the bar of reason. The continuance of any order at all, however mixed it may be with injustice and arbitrariness, is of greater value than the utter lack of order, than total disorder. The Christian philosophy of law can demand this because in its eyes the nature of the state is not exhausted in the legal order, although the state must be essentially a constitutional state: it must be in the law. But the state is more than that, for it does not live by law alone; it also lives by the acts of all the social virtues through which the idea of man is perfected.

Simply Speaking Legal Positivism Philosophy Essay

The natural law : a study in legal and social history and philosophy /

The world is order. The order of creatures according to the differentiation of their natures and their gradations proceeds from God’s wisdom. Chance is not the origin of things, nor is the world a chaos into which our intelligence had to bring order. The law of order corresponds to God’s wisdom, which first conceived it in idea prior to God’s will calling it into existence. This order is therefore an order in accordance with the essence of God. Whatever is real is an imperfect exemplification of the ideas of God which are embodied in things. Man recognizes this order as directed to one final end, to God Himself, who at one and the same time is origin and end of the order. For the rational creature endowed with free will, who cooperates in shaping the world, the order of being thus becomes an order of ends, culminating in the final and highest end, the glory of God.

The order perceived by reflective thought is not, however, a rigid, static order of motionless things. It is not external compulsion, a clocklike mechanism which, once wound, runs according to mechanical laws. The order conforms to the natures of the things. It is indeed an order of necessity for inanimate as well as for living but irrational creatures. But it is an order of freedom, a moral order, for beings endowed with reason and free will. Therefore, so far as man perceives that he is a creature possessed of free will who is not subject to blind necessity but to the law of freedom, he also perceives that this order, in accordance with God’s will, ought to be. The ontological order becomes, in relation to man endowed with free will, the moral order. The order of being confronting the intelligence becomes the order of oughtness for the will. Since, therefore, from knowledge of the essences of things the order is perceived as established by God in conformity with His essence, this order necessarily appears to the will of the rational and free creature as likewise an order to be attained and preserved and as a norm of the finite will. But this order is naturally and really “given.” It is not projected by human reason, in keeping with subjective, regulative forms, into an external world which in itself is unrecognizable as order. It is objective order, independent both of our thought and of its being thought of here and now.

Oliver W. Holmes, “The Natural Law” (1918), in  (New York: Harcourt, Brace and Howe, 1920), p. 312.
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Other positivists respond differently to Dworkin's phenomenologicalpoints, accepting their relevance but modifying the theory toaccommodate them. So-called “inclusive positivists” (e.g.,Waluchow (to whom the term is due), Coleman, Soper and Lyons) arguethat the merit-based considerations may indeed be part of the law, ifthey are explicitly or implicitly made so by source-basedconsiderations. For example, Canada's constitution explicitlyauthorizes for breach of Charter rights, “such remedy as thecourt considers appropriate and just in the circumstances.” Indetermining which remedies might be legally valid, judges are thusexpressly told to take into account their morality. And judges maydevelop a settled practice of doing this whether or not it is requiredby any enactment; it may become customary practice in certain types ofcases. Reference to moral principles may also be implicit in the web ofjudge-made law, for instance in the common law principle that no oneshould profit from his own wrongdoing. Such moral considerations,inclusivists claim, are part of the law because the sources make itso, and thus Dworkin is right that the existence and content oflaw turns on its merits, and wrong only in his explanation of thisfact. Legal validity depends on morality, not because of theinterpretative consequences of some ideal about how the government mayuse force, but because that is one of the things that may becustomarily recognized as an ultimate determinant of legal validity. Itis the sources that make the merits relevant.


Since constitutional provisions limit the authority of the legislative body to make lawsAustin is forced to argue that what we refer to as constitutional law is really not law at all ratherit is principally a matter of positive morality Austin 1977p. HartPositivism and the Separation of Law and Morals71 Kenneth Einar HimmaPositivismNaturalismand the Obligation to Obey LawKenneth Einar HimmaFunctionalism and Legal Theory The HartFuller Debate Revisitedvol. Thuson Harts viewthere are two minimum conditions sufficient and necessary for the existence of a legal system On the one hand those rules of behavior which are valid according to the systems ultimate criteria of validity must be generally obeyedandon the other handits rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials Hart 1994p. The principal objective of conceptual or analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of normssuch as ethical norms. But the assertion there are necessary constraints on the content of lawin and of itselfis consistent with the discretion thesiseven construed as a conceptual claimas long as there are cases to which the natural law is indifferent legal positivism vs natural law. In the United Statesfor examplethe ultimate political power seems to belong to the peoplewho elect lawmakers to represent their interests. According to Dworkinprinciples and rules differ in the kind of guidance they provide to judges Rules are applicable in an allornothing fashion. Please subscribe or is available by subscription and perpetual access to institutions. Natural law theory asserts that there is an essential connection between law and morality. The discretion thesis is vulnerable to one powerful objection. On Colemans viewHarts analysis of social rules implies only that 1 is impossible. Insofar as these principles are built into the existence conditions for lawit is because they operate as efficacy conditions and not because they function as moral ideals. On Dworkins viewthere is always a right answer to such cases implicit in the preexisting law. Practicingdeciding or tolerating certain practices of law can each be considered a way of creating law. The text is designed to be introductory but at the same time delves into difficult and sophisticated issues and arguments. On Austins viewa sovereign cannot be legally constrained because no person or body of persons can coerce herself or itself. . Perhaps with Colemans response to his earlier criticism in mindDworkin concedes that semantic theories are consistent with theoretical disagreements about borderline or penumbral cases people do sometimes speak at crosspurposes in the way the borderline defense describes Dworkin 1986p. Restricted to contemporary analytic jurisprudencebut stands out due to its argumentative structure and style. If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rulethen it is not uncertain whether any social rule of recognition governs that decision on the contraryit is certain that none does Dworkin 1977pp. They specify the way in which the primary rules may be conclusively ascertainedintroducedeliminatedvariedand the fact of their violation conclusively determined Hart 1994p. Otherwise putsome norms are authoritative in virtue of their moral contenteven when there is no convention that makes moral merit a criterion of legal validity. Due process and fundamental fairness require reasonable notice of which behaviors give rise to liability. The point of moral principleson this viewis to give ethical structure to the pursuit of these basic goods moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good. Aquinas distinguishes four kinds of law 1 eternal law 2 natural law 3 human law and 4 divine law. Eternal law is comprised of those laws that govern the nature of an eternal universe as Susan Dimock 199922 puts itone can think of eternal law as comprising all those scientific physicalchemicalbiologicalpsychologicaletc. Formal criteria of laws originlaw enforcement and legal effectiveness are all sufficient for social norms to be considered law. One can deny natural law theory of law but hold a natural law theory of morality. IndeedHarts inclusive positivism allows him to hold that a rule of recognition could require judges to decide cases in precisely the manner that Dworkin advocates Hart 1994p. Aquinass thought was especially influential on later Scholasticswho began to apply natural law to the idea of international relationswarand peaceand to develop natural law accounts of international law. As a practical matterlawyers rarelyif everconcede there are no legal standards governing a case and ask the judge to legislate in the exercise of discretion. In its most general formthe separability thesis asserts that law and morality are conceptually distinct. For the ultimate basis of a rulers moral authorityon this viewis the fact that he has the opportunityand thus the responsibilityof furthering the common good by stipulating solutions to a communitys coordination problems Finnis 1980351. We can disagree over borderline cases I may call something a slim book that you would call a pamphlet. At the time the case was decidedneither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victims will. For the judges would rightfully have been criticized had they failed to consider this principle if it were merely an extralegal standardthere would be no rightful grounds to criticize a failure to consider it Dworkin 197735. For examplethe Fourth Amendment provides that the right of the people to be secure in their personshousespapersand effects against unreasonable searches and seizuresshall not be violated. According to this viewthenthe notion of law cannot be fully articulated without some reference to moral notions. Constitution and is consistent with the first fourteen amendments. Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions 1 the principle coheres with existing legal materials and 2 the principle is the most morally attractive standard that satisfies 1. Howeverthe majority of the article will focus on natural law legal theory. The judge cannot decide such a case merely by applying existing law because there is more than one available outcome that coheres with existing law. Thuson Dworkins viewthe discretion thesis implies that judges have discretion to decide hard cases by what amounts to an act of legislation because the judge is not bound by any legal standards. Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law inasmuch as conformity with natural law is a necessary condition for legal validityall valid law isby definitionmorally just. Despite its resemblance to this earlier criticismDworkins semantic sting argument takes aim at a deeper target. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one partys claim of right and against another partys claim of right. Classical natural law theory such as the theory of focuses on the overlap between natural law moral and legal theories. Dworkin The Logical Space Between Legal Positivism and Natural Law Theory. Ratherthey were having a disagreement about the status of some putatively fundamental criterion itself the majority believedwhile the dissent deniedthat courts have power to modify unambiguous legislative enactments.

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