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Jurisprudence: Positivism and the Tradition of Austin - Essay Example

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Introduction Professor HLA Hart upended the legal world with his treatise about the nature of law. In doing so, he critiqued the legal philosophies of Bentham and Austin, stating that they were naive, especially Austin, in stating that laws are based upon coercion and just the fact that these laws are in existence, without taking into account the standards by which these laws should be based…
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Jurisprudence: Positivism and the Tradition of Austin
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Download file to see previous pages Positivism and the Tradition of Austin In H.L.A. Hart’s critique of the legal philosophies of Bentham and Austin, Hart explains that these two men saw that laws as they are should be distinguished from laws as they should be. In other words, there is a distinction between law and morality, and a separation between the two. That said, Hart declares that Austin and Bentham also engage in legal positivism, in that the law as it is (law), and law as it ought to be (Law), is separated.1 Austin sees that there are laws which are based upon morality, such as those based upon God’s laws, and then there are man-made laws, which might, or might not, be based upon morality. Man-made laws which are not based upon reality might be benign, such as a so-called “silly law” such as the law in California that women may not drive in a house coat ( That is the kind of law which Bentham would obey, yet censure.2 In other words, the law is on the books, so the citizens must obey, yet the laws are silly, so it also the citizen’s duty to attempt to get the law changed by censure. Alternatively, according to Hart (1958), there might be laws with evil intent, such as those put forth by the Nazis. It was these kinds of laws, Hart (1958) states, that led to Bentham stating that there must be some kind of civil disobedience, in that resistance to these laws must be had, not only through censure but through not obeying these laws (Hart, 1958). Hart explains that Bentham states that there are extremists in positive law, on either side of the coin. There are those extremists who see laws with which they do not agree, and, because they have a personal disagreement with the law, they opt not to follow it. These individuals are anarchists, according to Hart (1958). On the other hand, there are those who see a law, and, no matter how dumb it is, or evil it is, state that the law is the law, therefore it must not only be obeyed, but must not be criticized. This would mean that criticisms of bad laws will be “stifled…at its birth.”3 That said, Hart says that there is often an intersection between law and morality, as each mirrors the other. Laws are often based upon morals, and morals are often a reflection of laws. However, one does not follow the other – just because something is immoral does not mean that there is a law against it, and just because there is a law against something does not mean that it is immoral.4 Bentham and Austin are correct, in that morality cannot be a basis for the law, simply because morality is, often, subjective. For instance, in the United States, in the case of Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld a law against homosexual sodomy, partially on the basis of moral concerns, in that a large portion of society considered, and still considers, homosexuality to be immoral and a violation of God’s law. However, Lawrence v. Texas, 539 U.S. 558 (2003) overturned Bowers, stating that homosexual sodomy cannot be made illegal, individual beliefs about the morality of the act non-withstanding. Indeed, the United States Supreme Court has decided a number of cases in favor of the rights of the individual to engage in certain practices which are deemed immoral by wide swaths of the country – ...Download file to see next pagesRead More
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