This essay will critically analyse inclusive legal positivism and will provide with arguments why it is a positivistic theory of law in name only. To do so, it will explore the essence of what legal positivism is by discussing the issues concerning morality and authority. The main argument of soft positivism being a positivistic theory in name only will consist of the assertion that the presence of morality in it makes it contradict with the essence of positivism, namely, that a connection between legality and moral truth cannot exist. This essay will criticise inclusive positivism based on exclusive positivism’s characteristics which will be considered to form the definition of legal positivism.
Legal positivism believes that law is a closed …show more content…
Hart, a soft positivist, thinks that “judges exercise their discretion in reaching a solution that fills the gap thereby creating law.” On contrary, Dworkin, a hard positivist, believes that “the law never runs out; the answer is always there to be found if the judge applies his mind to the matter properly”. Austin’s command theory asserted that law consists of the commands of the sovereign. These commands are backed up by the threat of sanctions which ensures that the sovereign is obeyed by the majority. Contrary, H.L.A Hart rejected Austin’s command theory based on the fact that his theory did not identify the idea of rules, but it just had the idea of order. He then argued that the modern legal system is a concord of primary and secondary rules “without which we cannot hope to elucidate even the most elementary forms of law” . Furthermore, Hart specified three main secondary rules one of which is the rule of recognition. This rule is used as an instrument by which one can determine the validity of all other rules. Dworkin criticise Hart’s rule of recognition saying that law is not only made up of rules but also of principles and policies on which judges will rely in hard cases. Example for Dworkin’s criticism can be seen in the case of Riggs v Palmer [1889] where a grandson poisoned his grandfather to death in order to inherit his estate. Since the will was legally valid and there was no law to make it void, the outcome of the case was decided using the legal principle that “no one should be permitted to profit from his own fraud or take advantage of his own wrong”. Therefore, using this case as an example, it can be argued that moral determents must not dictate legality as even when there is no existing law to judge a case, there is always a principle that can be used instead. Joseph Raz, one of the leading hard
Legal positivism believes that law is a closed …show more content…
Hart, a soft positivist, thinks that “judges exercise their discretion in reaching a solution that fills the gap thereby creating law.” On contrary, Dworkin, a hard positivist, believes that “the law never runs out; the answer is always there to be found if the judge applies his mind to the matter properly”. Austin’s command theory asserted that law consists of the commands of the sovereign. These commands are backed up by the threat of sanctions which ensures that the sovereign is obeyed by the majority. Contrary, H.L.A Hart rejected Austin’s command theory based on the fact that his theory did not identify the idea of rules, but it just had the idea of order. He then argued that the modern legal system is a concord of primary and secondary rules “without which we cannot hope to elucidate even the most elementary forms of law” . Furthermore, Hart specified three main secondary rules one of which is the rule of recognition. This rule is used as an instrument by which one can determine the validity of all other rules. Dworkin criticise Hart’s rule of recognition saying that law is not only made up of rules but also of principles and policies on which judges will rely in hard cases. Example for Dworkin’s criticism can be seen in the case of Riggs v Palmer [1889] where a grandson poisoned his grandfather to death in order to inherit his estate. Since the will was legally valid and there was no law to make it void, the outcome of the case was decided using the legal principle that “no one should be permitted to profit from his own fraud or take advantage of his own wrong”. Therefore, using this case as an example, it can be argued that moral determents must not dictate legality as even when there is no existing law to judge a case, there is always a principle that can be used instead. Joseph Raz, one of the leading hard