Role Of Judges In Legal Positivism

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MohamedAmro Beseiso
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Role of Judges in Legal Positivism and Natural Law

What are the limitations put on a judge?s ruling? Is there really room of maneuvering for judges in Legal Positivism? These questions have many implications including: Can a judge do a ruling solely based on his discretion? Which legal view should be followed? Each question has a different answer from both perspectives of law (Natural law and Legal Positivism) that will be discussed throughout this essay. Before we can understand the judges? roles with regard to Positivistic and Naturalistic views, we have to understand their ideas of law itself. In broad terms, Natural Law theory states that laws are discovered by moral reasoning and rationale. On the other hand Legal Positivism theory states that law is made by humans and has nothing to do with morality or justice. According to Herbert Lionel Hart, a prominent figure in legal positivism, ?valid legal rules is exhaustive of ?the law,? so that if someone?s case is not clearly covered by such a rule (because there is none that seem appropriate, or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by ?applying the law.? It must be decided by some official, like a judge, ?exercising his discretion.??[footnoteRef:1] Thus, Hart believes that judges should have some room in applying the law by using their discretion. Moreover, there is different types of discretion that will be discussed later in

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