Legal Positivs and the Rules of Law - Essay Example

This provides for the security of the people as manifested by the institution of a government willing to be able to enforce it for the benefit of the majority of the population at the very least. Law and morality are destined to be intertwined for they serve the same purpose and to establish a thought of segregation in a positivist perspective would essentially diverse any of its very nature. Any law, even if it does presuppose to be primarily lacking of moral substance finds the very same although in what may be a distorted moral view of the few to rendered it into being.

The source of any law must come from a moral perspective and this is inculcated therein by spirit. The discussion on the Utilitarian proposition on the distinction of law and morals has long found its way to stimulate conversation and debate over the great legal minds and has spanned centuries in the process. Austin said in his book ‘The Province of Jurisprudence Determined’ that “A law, which actually exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our approbation or disapprobation” (p.184). This has then on been the subject of reference by discourse from other authors in the legal profession.

This is perhaps another source of the thesis found Hart’s article of his distinction between what law is and what it ought to be. Thus from this discussion of Hart we were introduced to the exemplification of the German woman who has divulged to the military her husband’s resentment to Hitler which was a source of punishment for the latter by virtue of a statue. Later on the wife was found guilty by the appellate court under the German Criminal Code of 1871 for denouncing her husband to the German courts (Hart, p.2). This law clearly antedated the woman’s act and the decision can be perceived to be fuelled primarily by the moral institution of the law by the court.

But what concerns Fuller on Hart’s argument although the same was not an absolute positivist in the same level as Austin, was Hart’s position on a mere intersection of law and morals instead of clear convergence of the two. He then answered in retort and quite aggressively that the content of Hart’s article is confusing in the same way that the writer may have been just as confused of his hypothesis himself (Fuller, p.630). But despite this criticism, Hart’s one rhetoric finds its way to be an effective question that permeates through.

Consequently, he asked “Why should we dramatize the difference between them?” (Hart, p.3). Why indeed? Throughout the history of this debate it is fathomable that the minds behind the idealization of positivism such as Austin have parted their wisdom at a different day and age while the Utilitarian philosophical suggestion was a way of being. This enables for the advocacy toward strict adherence to the law devoid of moral rationalization. A law is a law and as such must be followed to the letter.

This renders the same to be an object of absolute prowess that could find its fault in the legislation process and the adverse outcome of which to be experienced during its actual enforcement with the weight of the law to be imposed by the courts of justice tasked to interpret and ultimately apply the law as worded by the legislative body. A law as a positive manifestation is a truth which may not be rendered otherwise. This