Legal Positivism

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Natural law is the belief that law, and morality are intertwined. There are notable theorists whom believe that natural law should be applied to our legal system and to the law-making bodies. St. Thomas Aquinas and John Finnis both represent ancient and modern natural law respectively and both believe that natural law should be applicable to our society. On the other hand, legal positivism is the belief that law, and morality are two separate entities. Some notable theorists that believe legal positivism should be applied to our legal system as well as to our law-making bodies include, H.L.A Hart and Ronald Dworkin. This essay will aim to answer the question of whether the judicial system in the UK should approach cases with a legal positivist…show more content…
His theory on natural law consists of seven basic goods, which consist of life, play, religion, aesthetic experience, sociability, practical reasonableness, and recreation. According to Finnis these seven basic goods give an answer to the question of why we do things. As people, all of our activities assist us in achieving one of the seven basic goods and it is the responsibility of the government to allow the people to achieve these goods through the legislator and through the judiciary . It is the duty of the judge to apply the law in such a way that it regulates society, yet it allows them to achieve the seven basic goods. This can pose an issue since striking a balance between the regulation of society and still allowing people to achieve the seven basic goods can be extremely difficult; as can be seen when one considers the fact that Finnis's goods on the surface are objective. Nevertheless, it is subjective when applied to different people. This might make it impossible to strike the perfect balance since the achievement of all the goods occurs at different stages for all people. For example, what constitutes the achievement of life? Is it strictly the instinct to survive, or is it the gain of material items? Additionally, these goods cannot be weighed against each other, does an increase in aesthetic experience compensate for a loss in friendship . Finnis…show more content…
There have been prominent theorists whom have supported the idea that morality and law should be distinct including, H.L.A Hart and Ronald Dworkin. Harts theory was first introduced through his publication of "The Concept of Law" in 1961. The theory consists of primary and secondary rules; as identified by Hard. He considers his primary rules to be all the rules we follow or our rules of conduct. In contrast to that, he created his secondary rules, which are considerably more detailed. They consist of three sub-rules, the rule of change, the rule of recognition, and the rule of adjudication. The rule of recognition is essential to the legal system as it gives the legislator a clear set of guide lines that validate the laws that are passed. Additionally, the rule change is necessary in order to sanction legislative or judicial changes to primary rules . This is crucial in order to allow laws to meet societies ever-changing needs. Finally, the rule of adjudication is what Hart believes allows judges to interpret cases which are considered ambiguous by using their own discretion. Whilst this can apply to cases which are not covered by any current laws, this also poses an issue regarding the Separation of Powers raising concerns about the applicability of the theory in the UK government. Additionally, leaving decisions to be made without any guidelines for cases that are not

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