Positivism and the Separation of Law and Morals: Hart,
Grade: 88 %
[The following is a compendium of read material, class lecture and personal opinion.
Those who use these notes should do so with caution, as the following might stray from
core course discussion and concepts.]
Positivism, Moral Law and Jurisprudence
When discussing what law is and what law ought to be there suggests the distinction between
natural law and that of legislation i.e. function of a law that needs to be accomplished for the
good of the people but not popular and that of one that is above all or constitutionally valid.
Morality is subjective to the individual and proceeds to the state via the social contract reason
does not stop because laws are created in within the moral framework, the moral framework
of what is good for the people suggests that all laws are derived to the befinit for the social
contract of the people as they wish to enlighten laws via there comblined social good/justice. There is existance in which the state does not serve the peoples intrests but lies in the realm
of the combined legitimacy to the system and not to the social framework, the social
framework therefore while rigid is maleable and bends to moral forces along many pathways.
A statement of a cleavage between what is and what ought to be law (moral law). Hart argues
that there remained an essential connection between law and morality.
Stated that he would "widen his point of view" in order to determine "not whether every
particular rule of law must satisfy a moral minimum in order to be a law, but whether a
system of rules which altogether failed to do this could be a legal system. Throughout his
paper Mr. Hart analyses jurisprudence and the philosophy of legal positivism through social
theory and philosophical rationalism.
Austin and Bentham as notable authors on the subject of jurisprudence.
Austin, Bentham looked at particular laws in refuting the argument of separation .Hart works
to refute them by expressing that they might have "obscured" the separation of an essential
contact between the two.
The Austaunian command structure:
i. the concept of a command the law is command issued by the uncommanded
ii. such commands are backed by threats of sanctions; and
iii. a sovereign is one who is habitually obeyed Hart holds a belief that the monarchy is only capable of creating such long held habits that
form into the Austaunian command law.
Kelson theory’s on the conference of rights in regards to the social contract: Till now it has
been the assumption that the social contract obeyed the function of criminal law; however in
a state if we choose not to f