Get The Form And Matter Of The Moral Law - Files Nyu

Legal positivism on the other hand states that the legal body exists devoid of any norms of morals. That being said, this theory does not entirely deny the influence of morals on laws. The theory follows the view that all laws, rules and regulations are man-made and thereby advocate the separation of laws and morals.

Raz's argument depends on his conception of a sources thesis, which says that all law is a result of social facts. Essentially, all law can be traced back to its source and the social facts around it (i.e. a law has authority because it was passed by Congress, not because it has some moral component).

The separation thesis is the contention that 'there is no necessary connection between law and morality'. A 'connection' means any sort of relation to social power, social rules, and morality. The term 'morality' is more complex as it includes valid and positive morality.

Hart critiqued the Supreme Court for using the idea of morality to decide that the conduct of the woman was immoral. Fuller accepted the Court's decision because it fosters regard for both morality and law by making illegal laws illegal and thus carrying a high position of adherence to the law.

Though human law is artefact and artifice, and not a conclusion from moral premises, both its positing and the recognition of its positivity (by judges, professionals, citizens, and thence by descriptive and critical scholars) cannot be understood without reference to the moral principles that ground and confirm its ...

Many other philosophers, encouraged also by the title of Hart's famous essay, “Positivism and the Separation of Law and Morals”, (1958) treat the theory as the denial that there is a necessary connection between law and morality—they must be in some sense “separable” even if not in fact separate (Coleman 1982).

Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such”.