Nature of Law: Positivist and Nonpositivists - Law Paper Example

Nature of law denotes an assumption that law is unique social-political fact, with almost similar universal features and it is through philosophical analysis that one discerns them. On the other hand, positivists believe that law should be based on what denotes a social fact but not on moral claims. Most if not all positivists firmly believe that these social facts are assertions, especially from authoritative personalities that meet the requirements to become law. However, nonpositivists or natural law theorists hold different opinions that embrace morality as basis of law (Murphy, 2014).

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Order now

Conditions of legal validity

Conditions of legal validity according to philosophers denote standards that qualify a law. There are various ways to look into these circumstances. The first one is by legal positivism while the other is by nonpositivist. Legal positivism entails Social and Separation thesis, which subscribe to the idea that social facts determine whether a law becomes valid or invalid. On the other hand, natural theorists propose that for a norm to be considered putative, it has to pass or meet a certain degree of morality (Murphy, 2014).

Normative Aspect of Law

Normative aspect of the law is a phrase used by philosophers to mean the moral legitimacy that comes with the law and why people ought to comply with it. According to philosophers, the normative aspect of the law has two parts; the first one gives reasons while the other part consists of justification. The first part stipulates how norms that become valid as law have the ability to form reasons for taking actions. On the other hand, the justification part tries to explain whether the subject of the law must abide by it (Murphy, 2014).

Early and Modern Positivists

Modern positivists tend to embrace inclusive positivism as opposed to early positivists who were extreme and more often than not favored exclusive positivism (Murphy, 2014)

Social Thesis

The social thesis is an idea that most scholars, that described themselves as inclusive legal positivism subscribe. It asserts that social facts are crucial and fundamental in coming up with legal validity. They include but are not limited to conventions and social regulations which are common in a certain community. Thus, social thesis takes non-normative approach (Murphy, 2014).

Separation Thesis

Separation thesis tries to negate social thesis. It stipulates that the conditions for legal validity are not in any way dependent on what appears as moral merits that form the norms in the issue (Murphy, 2014).

Inclusive Positivists and Modern Legal Positivists

Even though modern legal positivists are acting like inclusive positivists, there is still a difference in that they still do not conform on arriving at legal validity (Murphy, 2014).

Legal Rules, Principles and Moral Principles

Legal rules originate from a body or a recognized institution, and they derive their validity purely from where the source that carries out the enacting. It suggests they do not necessarily rely on morality, at least not all of the time. However, legal principle and moral principles rely on morality. Thus, legal principles appear to contain both the aspect of legal rules and to a greater extent, moral principles. Moral principles solely rely on content from which their validity establishes. On the other hand, legal principles obtain their validity from two sets of combinations, that is, one being source based and the other being content based (Murphy, 2014).

Dworkin Ideas

Dworkin behaves like a liberal natural lawyer. As far as natural law is concerned, he subscribes to the idea that the law must put into consideration the moral aspect. Moreover, the idea that rules determine law, according to him, is a mistake. He believes that principles which constitute the moral aspect are crucial in formulating rules. In addition to the moral issue, political considerations are essential. The counterargument of Dworkins interpretive theory involves some philosopher stating that legal reason cannot be as thorough the same way Dworkin tend to assume. They argue that the law is not that complicated, and that one can understand and apply it in a given situation (Murphy, 2014).

Dworkin and Legal Validity

Dworkin has an exciting position on legal validity, in that, legal validity should not rely on the moral argument, as this may lead to the whole community of legal experts to get their laws wrong. The idea is in line with exclusive positivists but against inclusive positivists that encourage some elements of morality on legal validity (Murphy, 2014).

Positivists and Coercive Power

The coercive power of law is a way that the law fails to follow ethical or moral value but at the same time appear to be valid or legitimate. Early positivists supported such kind of law as their argument implied that a law must not necessary be moral for it to be valid. However, modern positivists embrace the law because people enacting the law are competent, and the method used in passing the law is right (Murphy, 2014).

The Rule of Recognition

The rule of recognition is the one that tells us how to find out a law. The rule is of particular importance in modern times where there are several sources from which a law originates. Thus, the rule of recognition may become complex making it a necessity for the formulation of other rules that overrides others. The crucial role is aiding in establishing the validity of a given rule. However, the rule of recognition does not dictate or constrain one in a particular behavior but provide procedure on how the law ought to be carried out (Murphy, 2014).

Raz and Authority

According to Raz, a person has authority over another when those orders aid the person to fit well to logical necessity than what would happen to him or her in the absence of the authority. Raz believes that are offer service and their subject in return conforming to reason (Murphy, 2014).

References

Murphy, L. (2014). What makes law: An introduction to the philosophy of law. Cambridge University Press.