Law and Mortalilty
Introduction
The question whether law and morality are connected has been subject to various antagonistic philosophical arguments. Further, the line distinguishing the two is blurred, this has led the mushrooming of various schools of thought that seek to demystify the principles that delimit the two abstract concepts. Morality can be said to be a set of norms that a society deems acceptable.
Secular Natural Law
Lone Fuller puts forth arguments in support of secular natural law. By illustrative analogies he depicts a situation where a single legislative authority acts as the primary legislative authority by whose laws the society abides.
The natural secular natural law theory, unlike the divine natural law theory, puts forth an argument that the law does not flow from a divine being but rather that the law is derived from human intellect, the norms of the society and the ethical standards in the society. In addition to this argument is the notion of cultural relativisms that holds that no standards of good or bad morality and that morality is determined by the society.
In my view this theory does not dispense with the aspect of morality in law but considers morality to be relative and founded on the societies perception of good and evil and not a set of static divine rules handed down to be implemented.
Legal Positivism
The legal positivism theory on the other hand emphasizes on the complete separation of law and morality. This theory demands that when interpreting the law, the courts should consider the law in its strict sense, regardless on his personal perceptions of what is right or wrong. A critique of H. L. A. Hart’s arguments supporting the positivism theory depicts that the law cannot exist in isolation, but contains within it normative elements that in effect act as a nexus between law and morality.
Hart also identifies that certain practices act as clear indications of the normative nature of law. For instance, the Rule of Recognition which provides for an identification of the priority of laws and the fact that while interpreting laws the courts need to consider the ranking of this law in light of normative standards.
However, even with these differing lines of thought, hart is of the opinion that the individuals in the society are obligated to follow only the right laws that are thrown to them. This in turn means that Hart may be of the line of thought that law and morality are in one way or the other related.
The Debate
Lastly, Fuller tries to have in place the 8 conditions are supposed to be present in order to be considered to be legal rules of the nation, but we are in the dark when it comes to the issue of how these principles are related to ability hence making Hart’s explanation of how law and morality re related or rather unrelated is way better than Fuller’s explanation.
Conclusion
Hart’s positivist argument, acknowledging normative aspects of law and morality in contrast with the secular natural law theory seems to hold more weight showing that a complete separation of law and morality would not be in order however morality can only be inferred in a limited scope.
References
Fulller, L. (1964). The Morality of Law. New Haven: Yale University Press.
Spaak, T. (2010). Kelsen and Hart on the Normativity of Law. Stockholm Iinstitute for Scandianavian Law.
