legal positivism vs natural law
...d it. He also points out that the type of obligation brought upon by social pressure requires a sort of sacrifice, something which actual laws cannot fairly impose upon any member of a society, therefore social pressure cannot be legally enforced but merely mentally enforced. With that, we turn to Hart’s version of the external and internal view of law. Where eternal views exist, one does not belong to the society in question, but merely observes it, choosing with his own autonomy to accept or decline the rules of such a society, thus having no obligation to its rules or citizens. On the opposite end, the internal point of view would be encompassed by the individual citizen who accepts and practices the rules he lives among. Such a person would accept punishment with disobedience and see the laws as justifiable, understanding the need for their enforcement. On the other hand however, the outsider may benefit from his external position by having the opportunity to look upon the social function of such rules, thus being able to determine where he can fit into the society. An important question arises with this external view: Should the outsider who does not accept society’s rules be subject to the punishments in practice with those rules? Hart says yes, for merely not relating to the rules does not let you escape the fact that they are still in fair practice and acceptance a larger scale, and not to enforce them on one individual would void them for the rest of the citizens. Shortly explained for lack of room, one of Harts most important aspect of positivism is the notion of obligation versus the notion of being obliged. As it is difficult to understand, I will jump into the example of the Nuremberg Trial, one of the most controversial, international issues preceding the Hitler regime and the holocaust. Judges were put in the position under intense pressure to decide whether or not to sentence to death high ranking Nazi officials and German Military leaders who, through the course of W.W.II, tortured and unjustly prosecuted Jews. Should these men have been held accountable or obligated to undertake such sanctions if they were merely under the order of their commanding officer? The acts were considered illegal world wide, yet not to the leader of the Nazi party, so what position does that put the defendants in? These very questions of the defendants’ obligation leads to a different question of obligation: What type of obligation do the judges have pertaining to the law and to the moral sanctions of what occurred at the defendants’ hands? What obligation do they have a world wide society? Thinking Positivistly, one would disregard the public opinions due to the fact that they were mostly based on moral sanctions in this case and not so much on the international laws involved in the case, such as “crimes against humanities.” So what is the obligation to law here? In analyzing this case, Hart may say that although the judges would be more than obliged to sentence these men to death execution style, the obligation to law and its procedures state that the defendants have the complete legal right to defend themselves. Obligation implies upon society that a rule or law must be obeyed or a consequence will be dealt out, but to be obliged is simply to act in self interest as Hart emphasizes in his essay, “A More Recent Positivist Conception of Law.” His famous “gunman” theory explains that one would be more than obliged to give up his wallet in the case of being held at gunpoint and possibly being harmed. One would not be required by law o do so, they could challenge the criminal, however, if unarmed, a challenge would most likely not occur and one would submit to the pressure of a bullet. Finally, and most importantly, Hart presents his most accomplished, and in my eyes, a most recognizable force behind Positivism: the Rule of Recognition. What is recognition? It is the concept that puts the meaning into other things, the force that helps one recognize why things are the way they are, and why they are justified. In developed societies, the Rule of Recognition may encompass a constitution or creed, it may even be presented in the simple form of a “law of the land” inscribed on the wall of a church or state building. Which ever form it may take, the Rule of Recognition is the one which legitimizes authority and that decision made by that body is decreed as laws and must be followed. Hart exemplifies in his paper that when one speaks of a law being valid and therefore followed, they are referring to the Rule of Recognition in that the law is valid. When one questions the validity of a law, they can refer to the Rule of Recognition in their society and justify that law’s existence by understanding how and on what grounds it was made. Saying this much, it is imperative to point out that the Rule of Recognition is Hart’s most important aspect of his legal beliefs, for without it, there would be no justification for any of the laws in practice in a given society, thus perhaps implying that such a body is not a society at all. One cannot mention Hart without paying respects to his most prized student, controversially a naturalist, Ronald M. Dworkin. When asked what I personally thought to be Dworkin’s most significant objection to Hart’s view of positivism, I determined that it is most obviously the argument of the fundamental division of law and the principle of morality, mostly illustrated in issues of authoritative discretion and cases unanswered. For Dworkin brings attention to the question of what is to be done when a law does not specify a certain issue. A punishment or justification cannot be made without the authority recognizing that some form of principle must be incorporated in the final standings. The most discussed case to exemplify this notion is Riggs v. Palmer, the case of a New York grandson murdering his grandfather to benefit from his will. The Court was put in the position to decide whether or not a criminal should be entitled to benefit from is wrongs even if he was a beneficiary of a legal will. At the time, there was an absence of statute to regulate this case, thus the court was forced to use discretion to interpret the laws and dish out a punishment, for no murder can legally go unpunished. How could it be, as Dworkin points out, that there be no incorporation of moral and principle in the law, for this is an ever changing world with many things unaccounted for and unnoticed. Does not an officer have an option of giving or not giving a ticket to a speeding driver. It was not but 24 hours ago that I myself was pulled over and thankful for such discretional rights of officers. The one that pulled me over did decide to lecture me versus burdening me with a fine. What is one to do when a law says “feasibly” or “within reason”? One must interpret it, and interpretation cannot be done with a universal standard because every individual thinks differently, every situation is unique, and the only standards that are upheld in society are the laws themselves, one of which, I might mention, grants the rights of discretion to officials “within reason.” Isn’t irony grand! With all this in mind it is obvious to see that morality and principle are inherently incorporated into law, however, they are not the same as laws. Was it not fundamental morals of our forefathers of America that created the Constitution? Was it not their intuition and principled judgment that made it legal to bear arms and have the freedom of speech? Against Harts notion that in order for a principle to exist in law it would have to be considered a law, Dworkin points to the importance of principle being separate from law due to the fact that it carries more “weight” or importance; it touches many in deeper ways than a law can. A moral or principle will alter decisions of conduct, whereas a law simply and directly forbids a type of conduct. Hart notes “A rule may be binding...because that group ...accepts the rule as a standard...” How can this be true for morals and principles if morals very so much between individuals? It cannot, a principle cannot be binding for it is more of an opinion rendered from one’s upbringing than it is a law. Clearly, if morals are taken out of account of the law, many applications may be useless or meaningless, for morality surround us all, all of the time, in every ...