I dont think this isn't allowed but let me know and ill delete it. But anyway, so I'm a history student and for some reason that I can't understand my course has a law modules even though it's history I'm studying. And none of it makes any sense to me at all. And I'm meant to be writing an essay on one of the three theories I mentioned. I've tried reading the required reading for the module but it just makes no sense to me at all and google was not much help. So if anyone here could give me definitions of those theories and one or two examples of them in society I would be so grateful because it's been four hours and I've written "in this essay..."
I mean antifascist as in having the idea that fascism is objectively wrong, not on a relative subjective level, as I have recently been incredibly interested in hobbes and the application of legal positivism to modern democracies, as I believe it's the most materialistic state possible, because no values exist outside of the state, or over the state, including objective rights. That being said, fascism becomes wrong only if the state says it's wrong, but at the same time the people can dissent with this idea of the state, because they are sovereigns in a democracy, and so can decide whether or not to change laws. And so being fascist isn't objectively wrong even if the state says so, and therefore must be accepted. This would not occur in lockian theory for example, as fascism could go against one's interpretation of objective rights that go beyond the state. Is there a work around this or am I misunderstanding something?
Hi, this is a weird request, but I distinctly remember reading a comment in this thread which specifically recommended a classic work of philosophy of law on legal positivism, encouraging that anarchists read and understand legal positivism.
I can't find that comment anymore - does anyone remember or know what the book recommendation was?
Sorry for the weird request...
EDIT: I may have found it - I think it was The Concept of Law by HLA Hart
What would a Natural Law theorist such as Lon Fuller for example say to break down H.L.A Harts Internal Point of View argument? I feel like the IPoV argument is a weak argument. But I am trying to figure out a way to describe why I think this. I am currently writing a third year phil of law essay on NL vs LP. I am using the obvious Nazi example. But also using copyright law as an example the "You wouldn't steal/download a car" meme/pre video warning. I am naturally inclined to lean on the Natural Law side but I need to cement my position so need to think some things through as my lecturer brings up LP positions such as the IPoV by Hart. I am using Hart, Fuller, Austin, Aquinas, Blackstone etc. Maybe Finnis and Murphy but I don't understand those two very well. I want to find more NLT's to back up Fuller and to argue against Hart.
I cannot find many concrete differences between the two views and they seem to rephrase the same points. What am I missing? Can someone explain these two viewpoints?
Could the theory of legal positivism, in either of the forms of Hart or Austin be used to defend the actions of the Nazi soldiers in the sense that they might claim that what they did they had a legal obligation to do? What would Hart say about such a defense?
Some of Hart's positions seem the opposite of legal positivism to me, I was wondering what you guys thought.
For example, Hart says that a law that is morally unjust shouldn't have to be followed, but it's still a valid law. This doesn't seem all that different from the natural law position, that says a law that is morally unjust shouldn't have to be followed and is an invalid law. The difference between the two stances seems primarily to be cosmetic. They both argue for the same thing in the end. And if a law doesn't need to be followed, why is it still a valid law, if a valid law is a set of rules to be followed?
My second point, related, I'm confused about is Hart's Nazi example. So, there's this example where a woman betrays her husband to the Nazis because he did something that's illegal under Nazi law but morally right. He gives here three possibilities.
I read that Hart prefers option 2. But though it's less of a natural law position than option 3, doesn't that still admit that this woman needs to be punished, even though she broke no laws, because she committed a morally unjust act?
This all seems contradictory to me with his position the law and morals should be seperated. I'm in Dutch law school so apologies if I've missed something obvious.
I'm having a difficult time understanding objections to legal positivism, or reasons motivating objections to legal positivism, and would appreciate your insights.
SEP describes legal positivism like this:
>The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts...
>The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be... the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances. (link)
My understanding is that legal positivism holds roughly that laws are just what the state enforces as laws. Or maybe, using a counterfactual, a law is just what the state could justifiably (i.e. by appeal to the legal corpus) rule as being a law when rendering a legal decision.
SEP goes on to describe legal naturalism, a competing view, as laying out the following objection (among many):
>Natural lawyers deny this insight [of the Separation Thesis], insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts.
Isn't this false if we can provide an example of a "norm [becoming] legally valid [without] pass[ing] a certain threshold of morality"? It seems like such examples are abundant, e.g. the 3/5ths Compromise. What would motivate somebody to hold this criteria for legal validity (e.g. d... keep reading on reddit ➡
for some time now I've been trying to find a link between legal positivism and any ancient philosophers as to explain in a presentation how legal positivism came to be, any help establishing a link would be greatly appreciated.
Could someone simplify the debate? And what are the real-world impacts of the debate? Or is it simply a philosophical question?
Hey everyone! I'm doing a presentation on the concept of legal positivism for my Legal Philosophy class, specifically on the ideas of H. L. A Hart and Hans Kelsen. Any ideas on how we could bring the subject matter to my class in a way that's both entertaining and informative?