Legality and Morality

816 Words2 Pages
bulb-icon

Recommended: The Relevance of Positivism to the Legal Development Today

1 Introduction

The aim of this essay is to differentiate between law and morality, and to discuss whether there is an overlap between the two concepts. I will be making reference to theorists of both positive law and natural law, namely H. L. A Hart and Lon L. Fuller respectively and compare the two views on the above question. For the purpose of understanding, I will apply the two theories to the legal system in Nazi Germany.

2 Law and Morality

H. L. A. Hart

As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory, one must look at Hart’s definition of a legal system and the separation of primary and secondary rules. The former refers to rules that are socially acceptable in a society and regulate the behaviour of persons in a society by creating obligations and therefore creating social pressure to follow these obligations. It is, however, insufficient for a legal system to contain only primary rules and because of this secondary rules come into play. Secondary rules enforce primary obligations in the form of law.

The rule of recognition can be used to explain this more clearly. Hart stands firm that the fulfilment of moral criteria is not needed in order for a law to be valid and denies the fact that there is a connection between law and morality. He states that in order for a norm to be legally valid, it has to observe ‘fundamental rules specifying the essential law-making proce...

... middle of paper ...

...riate and critical analysis of the law.

Personally, Fuller’s idea of a legal system seems more plausible as he does not attribute legal validity in a binary fashion and there is room for moral criticism of the law. Law does not seem absolutely distinct from morality when applying it to examples such as the above debate. It is also more reasonable to assume that morality is used when forming legal rules.

Works Cited

1. H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 613
2. H L A Hart The Concept of Law (Oxford, 1961) 83-84
3. H L A Hart, The Concept of Law 2nd edn (Clarendon Press, 1994) 210
4. Joseph Raz The Authority of Law (Oxford, 1979) 150
5. L L Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 639
6. L L Fuller The Morality of Law (New Haven and London, 1964) 146

Show More
Related

  • Morality In Martin Luther King's A Letter From Birmingham Jail

    1188 Words  | 3 Pages

    Morality derives from the Latin moralitas meaning, “manner, character, or proper behavior.” In light of this translation, the definition invites the question of what composes “proper behavior” and who defines morality through these behaviors, whether that be God, humanity, or an amalgamation of both. Socrates confronted the moral dilemma in his discourses millennia ago, Plato refined his concepts in his Republic, and leaders such as Mahatma Gandhi would commit their life work to defining and applying the term to political reform. Finally, after so many years, Martin Luther King’s “A Letter from Birmingham Jail” reaches a consensus on the definition of morality, one that weighs the concepts of justice and injustice to describe morality as the

    Read More

  • The Problems with Hate Crime Legislation

    1649 Words  | 4 Pages

    Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.

    Read More

  • Perspective On Morality And Breaking The Law

    303 Words  | 1 Pages

    Starting with perspective one I would like to point out the key points. Laws are there to provide peace and avoid chaos, although we should follow the laws if there are things that people may disagree with. Instead of just keeping quiet they should have the right to speak out about it without necessarily breaking the law. Breaking the law wont make it change but discussion of why the law is unjust and why the law was put in place in the first place is bound to make more progress than breaking the law to prove a point. Perspective two, I don't completely agree with the statement that people have a moral obligation to break laws that are unjust, unfair, or immoral. I would more say the entirety of perspective two will get you no where but in trouble and in jail or in legal trouble with the law.

    Read More

  • Riggs V Palmer Case Study

    1528 Words  | 4 Pages

    This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the

    Read More

  • The Importance Of Coercive Interrogation

    1294 Words  | 3 Pages

    contravene laws, Jackson et al. 2011). For instance, society might regard various laws that govern them as legitimate when they perceive the legal and justice system and its authorities as promoting suitable standards of conduct, (Jackson et al. 2011). Consequently, such legitimacy pertains to the perception that various enacted laws are supposed to be complied with not as a result of external endorsement, rather because they are the correct behavioral standards, (Jackson et al. 2011). Society may confer legitimacy on law enforcers not merely due to the law enforcers’ adherence to standards of good behavior, but rather because it perceives the law enforcers as representing certain normative ethical frameworks, (Hough et al, 2010). This is particularly

    Read More

  • Humanity And Morality In Mere Christianity By C. S. Lewis

    1410 Words  | 3 Pages

    While maintaining a open look of this moral law, Lewis presents two objections one would present to the moral law: “The moral law is just herd instinct” and “Morality is just social convention. The moral law is not a herd instinct due to man’s choice to suppress stronger instincts in fa...

    Read More

  • Analysis Of Justification Of Human Dignity

    1963 Words  | 4 Pages

    A discussion of the justification of unusual consideration of human dignity in Fuller’s argument is a discussion of an exceptional connection between the internal morality of law and substantive morality. But the claim of anything like an exceptional connection here must rest on a proposition of the thesis that reads the internal morality of law as law’s moral element. This thesis primarily provides the framework to understand two key features of the moral element of law: the moral foundation of law and the moral task of law. If this thesis is accepted, then human dignity can be justified as relative moral fact to the moral element of law through the two keys feature of law’s moral element. In this

    Read More

  • Positivism In Human Services Essay

    1013 Words  | 3 Pages

    The individual rights are placed at the forefront while the society and community are seen as a threat to the individual. The individual’s rights are protected against the community and society. Legal positivists’ theory is one of the most very important theories. Legal positivism is based on the general theory of positivism. The theory doesn’t indicate good or bad, however it deals with scientific approach to law and social sciences.

    Read More

  • Truth and Goodness in Immanuel Kant and St. Thomas Aquinas

    3162 Words  | 7 Pages

    29 Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Indianapolis: Liberty Fund, 1998), 119-121.

    Read More

  • Comparing Positive and Natural Law

    1441 Words  | 3 Pages

    Positive law can be considered the ‘politically correct’ approach to authority and justice. It encompasses the idea of a society and community with laws, and that those laws are necessary for everyone’s well-being. Kreon evokes a Positivist attitude by shunning any morally appropriate notions brought on by his kinship with Polyneices, and pursuing a stance that he sees as politically necessary for the good of the society. This is the underlying reason for his decision to forbid t...

    Read More

  • Legal Positivism Essay

    1846 Words  | 4 Pages

    In the discussion of legal philosophy there is the ever occurring question “what is law”, many legal philosophers have attempted to answer such a question but I believe the one philosopher to change the field entirely was John Austin. John Austion was the first modern legal positivist (and possibly founding father) to present a contemporary theory of law. Austin’s main interest in the philosophy of law was differentiating the reality of the law from the normative or moral merit of law. This in sense is a scientific approach because positivism is an empirical approach to philosophy, which extends its use to the scientific method and other fields. None the less, my goal here is not to present an all-out account of Austin, but to present a comprehensive evaluation of legal positivism and present the issues I have found prominent in legal validity, whether it be with Hart, Austin or any other theorist.

    Read More

  • John Austin's Command Theory Of Law And Morality

    1254 Words  | 3 Pages

    The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that

    Read More

  • David Hume on Sentiments and Reason

    1553 Words  | 4 Pages

    Concerning the Principles of Morals.&quot ; 1983 Hackett Publishing Co.

    Read More

  • Law And Morality Essay

    811 Words  | 2 Pages

    Both law and morality serve to regulate behaviour in society. Morality is defined as a set of key values, attitudes and beliefs giving a standard in which we ‘should’ behave. Law, however, is defined as regulating behaviour which is enforced among society for everyone to abide by. It is said that both, however, are normative which means they both indicate how we should behave and therefore can both be classed as a guideline in which society acts, meaning neither is more effective or important than the other. Law and morals have clear differences in how and why they are made. Law, for example, comes from Parliament and Judges and will be made in a formal, legal institution which result in formal consequences when broken. Whereas morals are formed under the influence of family, friends, media or religion and they become personal matters of individual consciences. They result in no formal consequence but may result in a social disapproval which is shown also to occur when breaking the law.

    Read More

  • Law In Society

    1347 Words  | 3 Pages

    Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,

    Read More

More about Legality and Morality

Open Document