Posted at 10.01.2018
The doctrine of the "separability of law and morality" is the one that is distinctively associated with legal positivism. Amongst many of the jurisprudential analyses and contentions that legal positivists tend to engage with, their primary purpose has gone to set up that the "essential properties of rules do not include moral bearings" . Essentially, legal positivists endeavour to uphold the declare that "determining what the law is, does not always, or conceptually, rely upon moral or other evaluative concerns about what it should be in the relevant circumstances" . Thus, they may have often attempted to show their disapproval towards a variety of seemingly necessary links between legislations and morality, often in response to theorists such as Fuller and Dworkin. It really is posted that the doctrine of the separability of legislation and morality is a tenable one regardless of the criticisms that have been mounted on it by theorists from the anti-positivist camp. Hence, this newspaper will uphold the declare that the "existence and content of the law can be recognized by mention of the social resources of regulations (e. g. legislation, judicial decisions) regardless of morality" . In other words, it will be argued that law is with the capacity of existing without morality and that the arguments shown by certain theorists, namely, Fuller and Dworkin, in favour of the claim that there are necessary connections between laws and morality are unsustainable.
The issue on whether there is a necessary rational or conceptual connection between legislation and morality is a perennial one. There will be the legal positivists who tend to rally around Austin's declare that "the lifetime of legislations is a very important factor; it's merit or demerit is another" and there will be the natural lawyers who have a tendency to follow Augustine's claim that "a legislations which is unjust appears to be no law whatsoever" . Amongst all of the sayings of Austin, that one makes a straightforward appeal to the plain fact of the matter. You'll be able to express displeasure above the enactment of the Income Tax Acts or the Value Added Tax Functions, but regardless of the unjustness of these Acts, they are still in existence and validly in force. The presence of certain laws may be attacked for their injustice and although there may be disagreement as to the requirements of justice, it is possible to agree as to what laws are present . The objection here's that such regulations do can be found. Thus, there must be ways to account for the lifetime of regulations without depending on any theory of justice. As MacCormick has rightly asserted, "Laws don't can be found by virtue of being just, and don't stop existing by virtue to be unjust" . Justice is not the sole moral value but it is asserted that all moral values appear to be contestable in the same way as in the case of justice. The point made here is that whether a certain entity is legislations, does not be based upon its having moral properties. Therefore, it is possible to conclude that Austin's dictum on the existence of legislation not being dependent on its moral merit or demerit has "the clear engagement ring of evident fact" .
In the idea of Legislations, Hart also endeavoured to guard the claim that "it is at no sense a required truth that laws and regulations reproduce or satisfy certain needs of morality" thus, retaining the declare that law is with the capacity of existing without morality. He continued to elucidate an account of a test for discovering laws. He asserted that the "foundation of any legal system resides in an selection of normative presuppositions that underlie and structure the behaviour of representatives as they ascertain the lifestyle and contents of the norms that participate in their system as laws" . That array of presuppositions is what Hart telephone calls the "rule of popularity" . Such a guideline is a necessary condition for the lifetime of a legal system and its life is "a matter of fact" seen in its acceptance by law applying institutions. It offers the criteria by which the validity or living of rules as legislation is evaluated and the officials are under a obligation to apply laws gratifying the conditions set out in the standards . Any legal norm in the machine can have its validity and in that sense existence traced back to the best rule of identification. It can be said that a particular legal norm is valid when "it satisfies all the standards provided by the rule of recognition. " Therefore, certain norms can be found as laws and regulations of the machine because they are valid. It is through the elucidation of such a concept of rules that Hart directed to "maintain the validity of the concept of legislations as a morally natural entity, formally identified in conditions of its source . . . from which it derives its electricity and power" .
However, in response to Dworkin's criticism that the guideline of recognition in any legal system can never include substantive moral exams among its conditions, Hart robustly proclaimed that "the guideline of recognition may incorporate as conditions of legal validity conformity with moral key points or substantive ideals" . This "soft" positivist outlook has otherwise been characterised as "inclusive legal positivism" . Inclusive legal positivists espouse the following claim, that "it could be the truth, though it need not be the situation, that a norm's steadiness with some or all of the requirements of morality is a precondition for the norm's status as a legislation" . Hence, morality can be applied as a threshold test under the rule of popularity although morality as a precondition for legal validity is not intrinsic in the concept of legislations. That test can be utilized by the officials as one of the criteria for identifying the lifestyle of law. Nonetheless it is usually to be emphasised that such checks are "contingent features, somewhat than essential features, of the systems of rules wherein these are applied" . Essentially, inclusivists still uphold the view that morality do not need to be considered a necessary pre condition for the existence of law atlanta divorce attorneys legal system thus upholding the claim that "morally iniquitious provisions may be valid as legal rules" .
In contrast, anti-positivists seek to refute the doctrine of separability of laws and morality by evolving the argument that the bond between laws and morality is essential somewhat than contingent. For example, Fuller, an all natural law theorist, claimed that there are necessary moral proportions to the making of legal rules and that regulation has its own inside morality. Thus, for this reason, law is unable of existing without morality. Dworkin, on the other side, seeks to refute the positivist claim by displaying that it does not adequately describe the activity and argumentation of judges by concentrating on a theory of adjudication. The next two sections of this paper will focus on refuting the assertions advanced by Fuller and Dworkin respectively by revealing the defects in their claims.
Lon Fuller established fact for his significant contributions to contemporary natural law and for his efforts to show the inherently moral character of law. Rather than adopting a substantive natural legislations approach, Fuller chosen a "procedural natural laws" way that concentrated mainly on the procedural areas of law. Fuller looked after that besides the substantive purposes of an legal system, certain procedural purposes needed to be acknowledged if the machine were to meet the criteria as a system of law, rather than set of companies using arbitrary pressure. In growing his procedural version of natural regulation, he argued that "certain fundamental characteristics of any genuine program of rules are morally pregnant" . Thus, for him, the bond between legislations and morality is a required one on "typically content unbiased gounds" .
Fuller expounded eight requirements which he asserted that lawmakers should abide by to be able to successfully create laws. In other words, law does not exist in a particular society unless the following conditions are satisfied to some degree ;
there should be standard rules
they should be publicised so that citizens know about the guidelines they are anticipated to observe (promulgate)
rules shouldn't be retroactive
rules should be understandable
rules shouldn't be contradictory
rules shouldn't require do beyond the powers of these affected
rules should not be frequently changed
there should be a congruence between guidelines as produced and their implementation
Fuller detailed these rules as constituting the inner morality of regulation. In doing this, he claimed these characteristics of regulation do not only confer it using its status as regulation but also bestow it with an "inherent moral worthiness" . As a result, a legal system that conforms to Fuller's principles of legality is not really a morally neutral reality. However, this newspaper disputes the theory that these key points should be categorised as inherently moral or that they undoubtedly have moral significance. Instead, it is submitted that these conditions can have a moral significance but not actually so thus, keeping the declare that there are no necessary associations between regulation and morality even on content - unbiased grounds. In order to access whether Fuller was justified in arguing that his eight rules constitute an internal morality of law, it might be apt to consider some of the arguments that have been advanced in support of Fuller's say.
Ideal of Do it yourself - Determination
Firstly, it is argued that his eight guidelines advance the "ideal of personal perseverance" , thus doing an inherently moral function. By guaranteeing the promulgations of laws and regulations and preventing the enactment of magic formula laws, citizens are aware of the benchmarks to which they are being kept. In effect, the government is revealing to the individuals that "they are the rules we expect you to check out. If you follow them, you have our confidence they are the rules that will be put on your conduct" . Fuller discussed that this means that citizens know about the type of do that is allowed thus, permitting them to carry out their own activities with the guarantee that they might not be punished by the federal government representatives for violating a prohibition which they cannot have recognized. This sense of assurance against unpredictable consequence that is brought by Fuller's eight ideas advances the basic principle of self-determination. Initially sight, the argument may seem to be a reasonable one but it is posted that there are two difficulties with this debate.
The first difficulty, as suggested by Kramer, is the fact that it "overlooks the actual fact that uncertainty in the law can play a decision expanding role and a choice inhibiting role" . For example, imagine that in a specific society, among many of the laws passed, one of them standardises the way in which neckties are to be tied. Also, take into consideration the fact that law is seldom enforced regardless of the dependence on congruence between your formulation and execution of laws . One outcome is that there surely is uncertainty among individuals about the degree to that they can get to flee sanctions for tying their fits in a way that is not permitted. Such an uncertainty sometimes appears as "autonomy promotive" when the "uncertainty about governmental treatment is contrasted with people's self-confidence that the government will indeed intervene in some area(s) with their lives" . It is merely when the government decides to purely implement the restriction, perhaps following a few complaints are made about the poor enforcement of the law, that the citizens are unable to escape with tying their neckties in a prohibited way. Kramer rightly asserts that citizens still retain the "autonomy bolstering certainty" that they can not be penalised for tying their fits in a prohibited manner, but that some "autonomy-bolstering doubt" about the scope to that they can get away with tying their fits in a prohibited manner is also lost thus, triggering damage to each citizen's opportunity for self-determination.
Furthermore, the second difficulty relates the fact that the argument shown by Fuller assumes that risks to a citizen's autonomy solely emanate from governmental actions. However, it is arguable that individuals themselves are a potential way to obtain threat to another citizen's autonomy. Where residents are sure that the government won't intervene in particular areas of life, they may be available to disrupt the welfare and activities of 1 another. Hence, it could be concluded that the effect of non-intervention from the federal government in certain areas of life will be "generally promotive of autonomy" . It is still easy for citizens to lose a few of their liberty to carry on using their own activities.
Secondly, Fuller asserted that in a particular society, whenever a government passes laws, citizens are expected to adhere to those laws. They are really held responsible for their own deeds or misdeeds. As each sane resident is with the capacity of autonomous decision making, they are capable of handling their own behaviour to conform to the mandates which have been transferred by the government. As Fuller discussed, "to attempt the business of subjecting individuals carry out to the governance of rules involves necessarily a commitment to the view that man, or can become, a dependable agent, with the capacity of understanding and pursuing rules, and answerable for his defaults" . Consequently, regulations "pays tribute to each sane adult's position as a realtor who is capable of deliberation and choice" . Consequently, the constitutive characteristics of law as encapsulated by Fuller's eight key points form something that intrinsically acknowledges the duty and dignity of the individuals who are put through the laws of the machine. Thus, law's constitutive characteristics should be labeled as an interior morality.
However, this argument is not without its troubles. Imagine a scenario in which a thief has located a blade against his victim's throat and has threatened to adopt her life if the victim does not hand over her jewellery and pocket. The reasoning offered by Fuller in this instance will mean that the thief's command to his victim will have "paid tribute in a morally laden way to the organization of the sufferer" by allowing her finally choose whether to obey the order or have her neck slit. He is relying after the victim's capability to make rational decisions and the sufferer will be held responsible if she makes a wrong decision. In that situation, the thief has "attested to his notion in the rational company of his sufferer which he sees as the automobile for the success of his ends" but it might be absurd to say that the command word issued by the thief includes moral respect for the victim.
It is argued that the command word issued here does not have any moral push. Kramer insists that to assert otherwise would diminish the distinction between your idea of "autonomy qua cognitive truth" that relates to the pure capability of an individual to make choices and the idea of "autonomy qua moral ideal" that pertains to an individual needing to bother making a choice in a situation where his will is not coerced. Thus, it may be logically figured legal rules "do normally trade on each citizen's organization or autonomy in the cognitive sense" because the rules present requirements that are to be accompanied by individuals capable of choosing to heed them but this will not "entail a commitment to the moral ideal of autonomy" . The characterisation of norms as legal norms does not change because they limit the civil liberties of individuals to a big scope or because they build harsh sanctions for many who choose never to follow the norms. It may be asserted that the connection between legality and concept of "autonomy qua moral ideal" is not intrinsic but contingent. Kramer logically shows that unless an acknowledgement of an individual's capability to make decisions is "coupled with a substantive policy of extending broad leeway to individuals for the making of the various selections", the law's acceptance of the autonomy of people in itself is "forget about admirable when compared to a loan provider robber's or kidnapper's similar acknowledgement of the firm of his patients" . As a result, it may be concluded that the law's basic recognition of an individual's capability to make decisions will not contain any inherent moral value.
Fair Opportunity and Fair Warning
The final argument manufactured in favour of Fuller's case concerns the role of his eight key points in ensuring that the citizens are able to follow the regulations that they are subject to. It really is argued that once the eight conditions for the existence of a legal system are satisfied, the regime has done all it can towards offering the residents a fair chance to obey the laws and regulations they are subject to. Rational notice of the kind of conduct required from the people is given and it generally does not require them to fulfil responsibilities and commitments that they can not possibly fulfil. Because of this, if a resident has failed to comply with the regulations, it is his own responsibility or mistake. Thus, Fuller's eight precepts of legality "encapsulates the beliefs of fair warning and good opportunity" and also ensures that unfair punishments is minimised as people cannot likelihood be punished for regulations that they are unacquainted with. Therefore, a program that adheres to Fuller's conditions attains the moral position that has just been outlined.
Kramer proposes that the "status of normative propositions" is highly recommended in order to totally understand why compliance with Fuller's rules does not have any inherent moral connotation. A good example of a normative statement would be, 'I must stop drinking liquor'. In order to decipher whether the normativity is "prudential or moral" , the reason why as to the reasons such a assertion was made must be considered. Alcohol consumption on a regular basis is injurious to health, thus, he might well have made this affirmation because he wants to improve his health. Because the reason behind making such a affirmation is dependant on the individuals own hobbies, the normative assertion is prudential. However, it's possible that the individual made this declaration in the pursuits of others such as his family members as he would be in a better position to look after them when he's sober. Consequently, if the declaration was designed for this reason, then your normative statement is fundamentally moral. Consequently, Kramer rightly asserts that "the normativity of an assertion does not in itself endow the assertion with any moral standing" and only when the assertion was manufactured in the passions of other folks does it have any moral relevance.
Similarly, if the officials in a specific society abide by Fuller's ideas for purely prudential reasons, "the conformity with their regime to those principles will not endow the regime with any moral worthiness" . It really is arguable that it's not only easy for governments to act for simply prudential reasons in opting to conform to Fuller's precepts of legality but that their adherence to his ideas is not based on their supposed moral worth. To be able to coordinate the politics, economic and sociable life, the use of basic norms is very important. Karmer asserts that because "the sway of the government is normally quite comprehensive in its spatial and temporal range" and because "a federal government must offer with a variety of problems in a multitude of circumstances" , the government usually employs general norms. This is one possible prudential reason for which the administration conforms to Fuller's eight key points. Therefore, it is possible for benevolent regimes to provide effect to their aims by abiding by Fuller's precepts of legality and they can do this for strictly prudential reasons. Because of this, it can be figured adherence to Fuller's rules is devoid of intrinsic moral relevance. Like the proposition, of 'I must stop drinking liquor', Fuller's key points aren't of intrinsic moral value and that their moral status varies with the situations in which they operate.
This portion of the paper will consider some of the criticisms installed by Dworkin on the doctrine of the separability of legislations and morality. Unlike the inclusive legal positivists who assert that the bond between laws and morality is a contingent one, Dworkin asserts that legality and morality are inextricably linked. In Laws Empire, Dworkin insists that laws is usually to be cared for as a moral issue and that regulation is automatically an venture of moral justification. Dworkin illustrates his own theory concerning the identification of the law. Unlike Hart, Dworkin's interpretative theory shows that every proposition of law stating what the law on some subject is, necessarily consists of a moral common sense. Corresponding to Dworkin's interpretative theory, judges must "construe the object of interpretation in the most favourable way that satisfies the criterion of fit" . Quite simply, they try to provide the greatest interpretation according to the criterion of fit. For Dworkin, propositions of legislations are true only when with other premises they follow from that group of guidelines which both best fit all the settled law recognized by mention of the social resources of the law and offer the best moral justification for this. Thus, Dworkin asserts that "judicial decision making is a practice of moral justification" .
In Laws and regulations Empire, Dworkin advocates the idea that the criterion of moral soundness is needed to go with the criterion of fit . Dworkin reasons out that in hard circumstances, there will be several interpretation that will fit the legal materials reasonably well. As a result, judges will have to rely on some standard that will "select among the list of competing interpretations which have satisfied the necessity of fit" . For your purpose, judges vacation resort to the standards of moral elegance. It is published that Dworkin's complementary criterion is required only in difficult instances which constitute a small percentage of lawsuits. It isn't required in easy circumstances and in various situations where in fact the operative legal norms are not items of contention whatsoever. Thus, considering Dworkin's bill of the role of moral criterion for adjudication, it may be concluded that such a criterion is merely required in hard conditions and it is redundant in other circumstances, where in fact the criterion of fit is sufficient to find out results. In other words, Dworkin's account suggests that officials hardly ever have to make moral judgments where offering effect to the law. Because of this, it may be shown that Dworkin's promise with an inherently moral tenor of regulation is unsustainable.
However, in Law's Empire, Dworkin securely asserted that officers invoke moral concepts in easy conditions as well as in hard circumstances. Furthermore, he in addition has argued that even though moral ideas aren't invoked in easy situations, the criterion of fit is itself a moral criterion. As a result, it emphasises his promise on the legal decisions are a result of moral justifications or that they are morally significant. He refuses to accept the argument that "law as integrityis at best a conception for hard conditions alone" and asserts that "law as integrity explains and justifies easy instances as well as hard ones" . It might be conceded that Dworkin's interpretive model is able to account for easy cases but Kramer insists that such a model is "wholly unnecessary for understanding or resolving such instances" . With Dworkin saying that the moral criterion is merely invoked when the criterion of fit itself struggles to reach a finish, it may be argued that the criterion of fit is redundant in most cases where legal norms are applied. As a result Kramer rightly concludes that in the great selection of situations where there are no legal disputes, "the law's bearing on a particular group of facts can be motivated without recourse to the standard of moral elegance" .
Despite that, Dworkin further asserts that the criterion of fit is "profoundly moral in its basis and implications" . For Dworkin, integrity requires that adjudication follows the ideal of consistency in concept and integrity contains a coherent structure of justice and fairness in the right connection. However Kramer contends that Dworkin's "view of fit as a morally pregnant criterion is untenable when applied to heinous regimes of regulation" . Wicked rulers, who do not have their residents' best interests at heart, do have enough known reasons for complying with Dworkin's criterion of fit. Among the reasons could be related to the actual fact that conformity with the criterion of fit entices people to obey the evil rules. For instance, when residents are well aware that they can not receive sanctions for failing woefully to follow the rules and that they will receive punishment for failing to do so, they have very good reasons for obedience. In addition, if representatives in a wicked program adhere to the procedures of the legal norms which they have implemented, they are really in a much better position to carry out their bad activities more successfully. Therefore, Kramer has rightly argued that the criterion of fit will not only serve to discover the equality and dignity of men and women but that "the necessity of fit can amount to an integral vehicle for the adept perpetration of evils" . As a result, Dworkin's discussion that his criterion of fit is morally significant in every legal systems is untenable.
Even if one were to concede to Dworkin's claim that officers have to invoke some set of criteria to complement the criterion of fit, the question then develops concerning whether it has to have a moral value or some sort of moral standard. Dworkin points out that judges try to provide the greatest interpretation of what the law is that could justify the coercion of the state of hawaii. Kramer asserts that Dworkin "calls for for awarded that 'best' means 'morally best'" . Because of this, he barely looks for to substantiate it which has kept him in a prone position.
It is posted that representatives in a wicked legal routine will have sufficient known reasons for conforming to the "rule of law guidelines" and this can take place on the foundation of solely prudential considerations. Officials are more likely to choose to "consult their own health" than to count on the requirements of morality when invoking additional criteria to complement the criterion of fit during the procedure for decision making. In an attempt to strive to "label of their regime the best it could be", representatives "define 'best' not as 'morally worthiest' but as 'maximally promotive of our own passions'" . Therefore, it is very likely that judges in wicked legal regimes reach their decisions by relying on purely prudential concepts instead of moral principles. Quite point to be aware here is that the requirements relied upon by the officers to complement the criterion of fit will not always be moral in nature.
In support of his view that judicial decision making is a practice of moral justification, Dworkin does not make much effort to advance quarrels that may support his declare that "legal decision-making as inevitably a types of moral decision-making" . Instead, Dworkin basically sets forward two main arguments which support his claim that all adjudicative guidelines are moral ideas.
Firstly, he submits that "all adjudicative principles assign rights and duties to the people instead of encapsulating prudential judgments" . Presumably, Dworkin here refers to moral privileges and duties. For any legal positivist, rights are enforced by legal norms and "legal rights are protections-protections against disturbance or uncooperativeness conferred by legal norms" . You will find ways in which these legal responsibilities and protection under the law can have moral power. The first way is usually that the legal norms imposing the rights and responsibilities are themselves morally suitable thus, the legal obligations and privileges are also of moral well worth. Consequently, legal norms that immoral might not bring about illegitimate prospects. Therefore, the legal rights and duties will have "at least a weakened prima-facie moral drive" . However, it is argued that even of moral privileges and duties aren't present, "the legal rights and obligations will obtain as such" . In other words, Kramer asserts that "a need imposed by way of a legal mandate is believe it or not a legal responsibility for being without moral bindingness, and a protection conferred by the legal norm is believe it or not a legal right for being devoid of any moral warrant" . There is absolutely no reason Dworkin should insist contrary to this.
In addition, the "moral or nonmoral tenor of legal key points and other legal norms cannot be gauged without reference to the representatives' motives for the adoption and effectuation of the norms" . As illustrated in the previous portion of this paper, whether legal key points or legal decisions are moral or prudential will rely upon the reason why that underlie them. For instance, the legal concepts are solely prudential if officers comply with them for prudential reasons even though the rights and obligations that emanate from them are strictly moral. Although someone's declaration to avoid drinking will give way to morally valuable effects, the decision was predicated on solely prudential reasons. As a result, the decision made by the individual is a purely prudential one as well. Precisely the same reasoning applies to legal norms that induce legal obligations and confer legal rights. As long the reason why for the legal norms are strictly prudential, "the rights and obligations under them are founded entirely because they further the officers' interests, without respect to any moral concerns" . Therefore, Dworkin's claim is unsustainable when he argues that the protection under the law and tasks that are established under the legal principles necessarily stops those rules from "statingprudential judgements".
Secondly, Dworkin asserts that the "process of distilling adjudicative key points from legal materials is a process of justification that is to be distinguished from reason" . Certainly, there's a very important difference between reason and justification but Kramer asserts that there is merely an important variation between "prudential justification and moral justification" . Moral justification of the decision by an official "will be fond of least just as much toward individuals as toward other representatives" , whereas a prudential justification is "directed only or almost specifically toward one's fellow officials" . Inside a malevolent legal system, judicial representatives may well choose prudential justifications when coming up with their decisions. They count on principles that best provide their own passions by portion the hobbies of the wicked routine and they rely on them to justify decisions that are come to. The reason why representatives in a wicked plan comply with Fuller's principle of congruence between rules as produced and their implementation, is the fact is enables people to obey laws and regulations transferred. Thus, such a justification is a prudential the one that serves to help expand their own interests.
Essentially, the case here's that wicked legal systems are bad because the officials react out of devotion to their own interests and not because they respond out of misguided moral matter. It is possible that in some wicked legal systems, as Dworkin suggests, the judges reply on misguided moral principles alternatively than on prudential key points. Thus, the wicked decisions are a rsulting consequence their misconceived notions of how they must be advancing other's pursuits. However, the case still remains that many wicked legal systems are indeed wicked precisely due to the fact that officials action out of these devotion to their own interests somewhat than out of misguided moral guidelines. There's a "high probability that purely prudential motives will shape quite prominently in the functions of such a system" . It may not be case that representatives always make decisions centered prudential reasons however the fact that they sometimes do it is enough to refute Dworkin's debate that legal guidelines are automatically or rather inevitably moral rules. Thus, Kramer asserts that "although many legal principles in an atrocious routine of law may be implemented for moral reasons, some of the legal ideas in that regime will almost certainly be embraced on starkly prudential grounds" . Because of this, Dworkin's claim that all adjudicative rules are moral rules is unsustainable since legal principles applied for simply prudential reasons are "the expressions of prudential judgments" .
In conclusion, it's been shown that the doctrine of separability of law and morality is able to withstand the onslaughts by Fuller and Dworkin who have insisted that the connection between rules and morality is necessary one rather than contingent one. This paper has endeavoured to uphold the state from the procedural facet of laws that the "existence of regulations is not reliant on their gratifying any particular moral prices of universal application to all legal systems. " The make an effort by Fuller to explicate a theory of the inner morality of laws in order to establish a necessary connection between laws and morality has been shown to be untenable. It might be conceded that his eight concepts of legality are favourable conditions for the living of any legal system however the argument they are intrinsically moral is unsustainable. Furthermore, Dworkin's assertion that representatives count on the moral attractiveness as a standards to check the criterion of fit because of their decision making is an unsound one as there exists room for uncertainty that the criteria replied upon is a moral one instead of a prudential one.
Perhaps there's a practical reason as to why positivists refuse to recognize that morality is a necessary test for ascertaining rules. Hart explained a legal system can be better identified by taking a larger point of view of what the law is which involves considering all laws which are upheld under the guideline of reputation, despite some guidelines being immoral . Also, it might be more of a sensible merit to place forward a precise description of any legal system that displays the way law actually works in real life.
Hart refused to acknowledge that morality is a necessary test for ascertaining legislations for two reasons. The first reason being a practical some may be a legal system can be better explained by taking a larger perspective of what the law is That is contrast to the narrower concept of rules that is often advocated by the natural legislation theorists which maintain that immoral guidelines are not rules by any means. Hart refused to look at the narrower of idea of regulation that excludes certain rules despite exhibiting "the rest of the complicated characteristics of law" and this "there is nothing to be gained in the theoretical or scientific study of law as social phenomenon" by adopting such a concept" . Furthermore, Hart went on to explain that "practically nothing, surely, but distress could follow from a proposal to leave the study of such guidelines to another discipline, and certainly noother form of legal research has found it profitable to do this. "
The second reason is more of an moral one. Hart argued that the enactment of legislations is not "definitive with regards to the moral question whether the law ought to be obeyed" . Regulation is morally relevant but not morally conclusive. Laws can be found because they meet a certain criteria necessary for a particular rule to be described as law. Following its enactment, regulations is still subject to moral scrutiny. Guess that the law can be an immoral one, the question then comes up concerning whether it ought or ought not be obeyed that various factors will be taken into consideration.