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.
[...] "Positivism and Fidelity to Law — A Reply to Professor Hart", Harvard Law Review 71 p Ibid. p Ibid. p Ibid. p. 644-645 Ibid. p Ibid. p Ibid. p. 649-650 Ibid. p Ibid. [...]
[...] Penner, Textbook on Jurisprudence, Oxford UP, 4th edition, p106 Fuller, Lon L., "Positivism and Fidelity to Law — A Reply to Professor Hart". Harvard Law Review 71 (1958), p 651 Oppenheimer v Cattermole and Nothmann v Cooper [1976] AC 249 Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart", Harvard Law Review 71 662-663 Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart", Harvard Law Review 71 p. [...]
[...] Hart insists on the separation of these doctrines which can be seen as contradictory when put together. The doctrine of the separation of law and morals must be held separately from the two others. The fact that all these doctrines were labelled “positivism” is a source of confusion.[11] To conclude, these arguments are known as Hart's ‘minimum content of natural law' which means that even if this part of morality in law is not a condition of validity of the legal system, it is a condition of its effectivity. [...]
[...] The discussion of Hart and Fuller Natural law has the purpose 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 law at all.[1] By contrast, Legal Positivism includes several positions but they all share the idea that the law is separated from morality. [...]
[...] Penner, Textbook on Jurisprudence, Oxford UP, 4th edition, p 62 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 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 Judgment of July Oberlandesgericht, Bamberg Suddeutsche Juristen-Zeitung 207 (Germany 1950) Harvard Law Review (1951). H.L.A Hart, ‘Positivism and the Separation of Law and Morals', Harvard Law Review, Vol No p619. http://www.jstor.org/stable/1338225, accessed 28/03/09 11:20 Ibid. p Ibid. p Ibid. J.E. [...]
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