LLB290 Study Guide - Final Guide: H. L. A. Hart, Legal Positivism
MODERN NATURALISM THEORIES
HUME (1711 – 1776):
Context:
Beginning of the 18th Century, it was the Age of Reason
Scientific methods had begun to increase in popularity
ELEMENTS:
Dismissed natural law claims
oNatural law was a part of justice
Distinguished between ‘is’ and ‘ought’
oHume was ignorant to metaphysics (beyond science) and focused on observable facts
oDistinction became a problem to be overcome by future theorists
FULLER (1902 – 1978):
Context:
Post-war America
Focus on reviving natural law – especially Aristotle’s concept of community
Sought to demonstrate that some legal systems were not legal systems as they lacked values
oIn the light of Nazi Germany
ELEMENTS:
Community: must be the focus of laws
Conscience: balance between –
oMorality of duty (minimum standard)
Basic morality towards humans generally
oMorality of aspiration (ideal legal system)
Procedural natural law:
oFocus on the ‘system of rules governing human conduct’
oRather than the substantive aims of natural law
Laws must be:
oClear
oConsistent
oKnown
oCan never be retrospective
oUnderstandable
oConstant
oOnly demand what is possible
oObserved by courts, police and administration
Where the bond between government and citizens is broken down citizens are not under an
obligation to obey
HLA HART (1907 – 1992):
Context:
English legal positivist (not a natural lawyer)
England
Follows Hume’s distinction of natural law as justice
Created a minimum content of natural law
ELEMENTS:
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Document Summary
Beginning of the 18th century, it was the age of reason. Scientific methods had begun to increase in popularity. Dismissed natural law claims: natural law was a part of justice. Distinguished between is" and ought": hume was ignorant to metaphysics (beyond science) and focused on observable facts, distinction became a problem to be overcome by future theorists. Focus on reviving natural law especially aristotle"s concept of community. Sought to demonstrate that some legal systems were not legal systems as they lacked values: in the light of nazi germany. Conscience: balance between : morality of duty (minimum standard) Basic morality towards humans generally: morality of aspiration (ideal legal system) Procedural natural law: focus on the system of rules governing human conduct", rather than the substantive aims of natural law. Laws must be: clear, consistent, known, can never be retrospective, understandable, constant, only demand what is possible, observed by courts, police and administration.
