Hart Positivism

1093 Words5 Pages
H.L.A. Hart, a legal Positivist, and Lon L. Fuller, who was a natural law theorist, engaged in debates between these two traditions of Jurisprudence. In his 1958 paper ‘Positivism and the Separation of Morals’, Hart maintained that positivism is a theory of the nature of law, not a theory of how individuals should reason when approaching the law. Hart was influenced by his predecessors, Jeremy Bentham and John Austin; he mainly defended the insistence on the lack of necessary connection between law and morality and highlighted that legal positivism includes nothing more than ‘the contention that there is no necessary connection between law and morality.' Harts positivism has been criticised over the years. One of the critics, John Gardner,…show more content…
In law people who carry out euthanasia are treated as committing murder or manslaughter. The Suicide Act 1961 makes a specific offence of criminal liability for aiding another’s suicide whereas suicide itself is legal. The case of R (Pretty) v DPP caused a stir in the euthanasia debate. Diane Pretty suffers due to a terminal illness and therefore requested to die at a time of her choosing to put an end to her pain. Pretty’s claim was unsuccessful due to the domestic realisation of the vast moral considerations at stake, and they therefore looked to the democratic will of parliament that can be found in legal text. The European Court of Human Rights did the same and applied the EU equivalent, the Margin of Appreciation, and refrained from passing judgment on the case. One of Mrs Pretty’s claims involved the violation of her human rights, she especially relied on the Right to Life Article 2 and that she is entitled to protection from inhuman or degrading treatment . Furthermore Pretty claimed that her right to respect for private life had been breached. It is clear then that there is an obvious moral overlap with each aspect of the human rights legislation which Mrs Pretty sought to justify euthanasia. This is because all of these rights strive to identify and protect what is thought to be fundamentally good for all individuals. The House of Lords themselves acknowledged the Pretty case…show more content…
If those principles disappear the society disappears. That is why people are so concerned about this at a time of very great moral change”. It is clear here that Lord St John Fawsley seems to be suggesting that society depends on common, shared morality, but that this is not the case when it comes to euthanasia, as peoples moral stances on the subject are so diverse. Additionally, the medical profession, despite its obligation in the Hippocratic Oath to heal, often places the religious principle of the sanctity of life above the fact that healing involves permitting the ending of life in some circumstances, as Mrs Pretty wanted. Furthermore, many practitioners are against the legislation that would allow voluntary euthanasia due to their moral feelings. If the law did decide to permit euthanasia, however, they may allow doctors who are against the practice to opt out, and instead other medical practitioners will be written into the bill, as is the case with abortion in many societies. If this was included in the Bill, then this would be an instance where the law has taken the backseat to the autonomy of medical practitioners and allow their moral viewpoints to override the law, therefore it is clear here that the law has a connection with morality and therefore it is far from being morally
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