Natural law has to explain the nature of morality. The natural law view believes that the creation of law should be based on natural laws or common morals. Laws are based on purpose, not on meaning of the words. Natural lawyers do not separate law and morality, since an unjust law is not a law at all. By contrast, Legal Positivism includes several positions but they all share the idea that law is separated from morality. For them, it is a mistake to think that law is linked with morality. Their first illustration of that point is the large number of wicked legal systems and the second is the difficulty to explain why morality is required. The issue of the relationship between law and morality arose in the 20th century with abuses of positive law, such as the stalinian URSS, the Nazi Third Reich or the Khmers Rouge regime in Cambodia. The Nazi legal system contained many wicked laws. The question of the rightness of decisions taken under the regime raised several issues in the jurisprudence. One of them, the validity of Nazi laws, or the submission of the State to the Rule of law, lead to a debate between the natural lawyer Lon Fuller and positivist H.L.A. Hart.
[...] Usually, a sentence or a paragraph is concerned.[55] And when the interpretation depends on a single word, Hart is accused to remain silent about what should be done. Fuller defends the interpretation of a statute according to its meaning and gives the example of the statute forbidding sleeping in train stations.[56] Hart is seen as missing the purpose of the law. The understanding of the laws can be reached only by reference to their purpose. Bibliography Hart, H. L. A. (1958). "Positivism and the Separation of Law and Morals", Harvard Law Review 71 593–629. [...]
[...] The issue of the relationship between law and morality arose in the twentieth century with abuses of positive law, such as the stalinian URSS, the Nazi Third Reich or the Khmers Rouge regime in Cambodia. The Nazi legal system contained many wicked laws. The question of the rightness of decisions taken under the regime raised several issues in jurisprudence. One of them, the validity of Nazi laws, or the submission of the State to the Rule of law, lead to a debate between the natural lawyer Lon Fuller and the positivist H.L.A. [...]
[...] Third, the question of the consequence of a strict application of an unjust law is raised. Fuller would prefer a system where a judge could bend the application of the law in order to satisfy the citizens. Fourth, people would consider law as a refuge only if it does not contain cruelties. Fifth, the danger is a lack of morality in law. Ex of commercial law: judges are acting with so much formalism that the choice of the arbitration is more and more taken by the parties. [...]
[...] Penner, Textbook on Jurisprudence, Oxford UP, 4th edition, p80 (1950-51) 64 Harvard Law Review 1005 H.L.A Hart, ‘Positivism and the Separation of Law and Morals', Harvard Law Review, Vol No p593. http://www.jstor.org/stable/1338225, accessed 28/03/09 11:20 Ibid p594 Ibid p598 Ibid Ibid p599 Ibid Ibid p601 H.L.A Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), p197 J.E. Penner, Textbook on Jurisprudence, Oxford UP, 4th edition, p H.L.A Hart, ‘Positivism and the Separation of Law and Morals', Harvard Law Review, Vol No p http://www.jstor.org/stable/1338225, accessed 28/03/09 11:20 Ibid. p Ibid. p Ibid. p. 606-607 Ibid. p Ibid. p J.E. [...]
[...] Penner, Textbook on Jurisprudence, Oxford UP, 4th edition, p 243 Fuller, Lon L. (1958). "Positivism and Fidelity to Law A Reply to Professor Hart", Harvard Law Review 71 p630 Ibid. p Ibid. p. 633-5 Ibid. p Ibid. p. 635-638 [38]Fuller, Lon L. (1958). [...]
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