Legal positivism Essays

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

is against this backdrop that this paper seeks to analyze some of the legal intricacies of the Eichmann trial in the context of natural and positivist legal theories in a bid to resolve the following questions: Firstly, whether an immoral law or unjust law is really law and whether the same should be obeyed; and secondly, whether in the view of Adolf Eichmann’s defence of him merely following lawful orders, should

different ways. Philosophy allows people to study the nature of people’s beliefs which can differ over time. Not even the law is exempt from the opinions of philosophers. Seeing law in different ways allows people to come to different conclusions about legal cases. The Fugitive Slave Law was a controversial law in American history, which allowed slave-owners to capture their slaves who have fled north to free states. Once, a group of emancipators in Boston was tried for helping an escaped slave flee to

punishment attached. The gunman is likely to shot while the sovereign is likely to imprison. Hart also states that not all laws are imperatives or coercive. For example trust and company law. Hart argues for the distinction between primary and secondary legal rules. The primary rule governs the conduct of the person, while the

(FIC p.29) Legal regimes, according to him, premise Indigenous rights on contradictory views concerning physical and philosophical mobility which he considers to be an “ironic injustice that works against Indigenous peoples” (FIC p.29) and one that impedes their ability

In his essay The Model of Rules I, Professor Ronald Dworkin argues against a certain theory of law he attributes to H.L.A Hart called “positivism.” While Dworkin argues against many tenets of the positivist theory, I will focus this essay on critical reasons against Dworkin’s argument against the legal positivist thesis that the law consist of nothing but rules. To do so, I will explain the necessary components of Hart’s theory of law required to understand Dworkin’s rebuttal. Then, I will reconstruct

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

John Austin and H.L.A. Hart offer differing analyses of obligation/duty and its connection to sanctions, however H.L.A. Hart provides superior reasoning in his analysis versus John Austin. While John Austin is able to provide an analysis of obligation and its connection to sanctions, his arguments are insubstantial. Instead, Hart develops a sophisticated and detailed description of the connection and fills in the gaps where Austin’s account lacks. This paper will analyze both philosophers’ accounts

The aim of this paper is to draw out the implications of liberal feminist framework for the analysis of education. Doing this paper will discuss its conceptual basis, its typical educational objectives, strategies for change and criticism of the approach. Feminist theoretical framework addresses the question of women’s subordination to men: how this arose, how and why it is perpetuated, how it might be changed and (sometimes) what life would be without it. Middle range theories may be less dramatic

Modus ponens is a pattern of arguing that is also known as “affirming the antecedent” (cite 139). This particular type of reasoning centers on an “if _, then _” statement and an example of it would be: “(1) If you have a hundred dollars, then you can buy the basketball jersey. (2) You have a hundred dollars. (3) Therefore, you can buy the basketball jersey.” Modus ponens is also a rule of inference, such that if you follow the rule, then the argument will never be invalid. It is possible to prove

In hard cases, judges are not legislating, as Hart’s positivists assert, they are inducing based on principle. Judges have a duty not only to apply the rules, but also to make sure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are not making the rules but discovering them. [20] According to Dworkin understanding the role of the courts is to defend the rights of citizens from the likelihood of unfair rules or other circumstances in

Legalism is a type of "Classical Chinese philosophy" (Legalism and Chinese Philosophy) that grasped strong eminence during the bold, storming, Warring States Era (475 BCE–221 BCE). Legalists struggled to improve the human lifestyle by noble examples, education, and moral/righteousness laws or rules. During the Qin dynasty, it was needed for a strong government in addition to a carefully designed set of rules and principles. Qin Shi Huangdi, "first emperor" (Legalism) with this was a defending force

hostile position towards recognising the duty of negotiation in good faith, let alone the general principle of good faith in other jurisdictions. Notwithstanding the underlying legal difficulties in Walford v Miles, a general principle should be established to facilitate business efficacy, fairness and reasonableness in legal development. Hereinafter, I will analyse its rationale in English law and submit the possible application of general principle of good faith with reference to both common law

What is equity? In layman’s terms equity is the term used to describe fairness and justice. The legal term is more strictly defined in that they must obey the rules of precedent and its development appears to be more inflexible and rigid. However there is an element of discretion on the part of the judges in that they have some flexibility. It has well established principles which govern the exercise of the discretion but these principles are flexible and adaptable. The aim of equity is to ‘do more

For Oliver Wendell Holmes, Jr., the study of law is nothing but a prediction of how judges will decide a case. This view was illustrated by the “Bad Man” theory, in which a bad person’s view of the law is the best way of knowing what the law is because the bad man will carefully and precisely calculate what he must do in order to avoid state-enforced sanctions resulting from disobedience of the law. The bad man does not concern himself with morals, instead he is more concerned with the material consequences

Unlike previous legal theorists who construed the legal system as merely punitive codes of conduct implicated by a sovereign figure to private citizens, H. L. A. Hart argues that there are supplementary aspects of the legal system that goes beyond these “primary rules” (79). According to Hart, if the customs of a society consists of only primary rules, this form of standards will be permeated with flaws, and cannot be considered as a legal system (92). The mains flaws indicated by Hart are issues

A Critical Study of Conscience and Conviction through the Work of Brownlee Tanisha Agarwal Institute of Law, Nirma University Abstract Kimberley Brownlee’s book Conscience and Conviction explores the nature of Conscience and Conscientious conviction and throws insight upon acts of civil disobedience, justifying them with innovative arguments. The book is divided into two parts- Morality and Law. The first part talks about morality of conviction and how civil disobedience is justified by a duty

Do you know what the purpose of this paper is to show the Old Testament's view of justice with the New Testament's view of Justice? We see in today world that the Old Testament's and New Testament has very difference view on justice but first, we need to know what is Justice according to Merriam-Webster dictionary it is the maintenance of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments. The word justice can be seen as a

Legalism is a fascinating philosophical and political system that has its roots in ancient China. Its emergence during the Warring States period and its popularization by the philosopher Han Feizi have made it a topic of interest and study for centuries. Legalism is a system that places a great emphasis on strict adherence to laws and regulations. This belief is rooted in the idea that humans are naturally selfish and that the only way to maintain order and prevent chaos is through the imposition

philosophical, legal and civic discourse. In The Concept of Law, H.L.A Hart explores the relationship between justice, morality, and the law. Noting that “justice should have a most prominent place in the criticism of legal arrangements,” (Hart 157) Hart seeks to illustrate that “it is a distinct segment of morality, and that laws and the administration of laws may have or lack excellences of certain kinds” (Hart 157). To demonstrate