Essay In Law Legal Library Philosophy Theory

If the arguments put forward by Dworkin are to be accepted, this not only suggests that legal theorists are allowed to refer to moral judgments, but rather that they are under a positive duty to consider these judgments by looking at the interpretation and evaluation of the rules of laws laid down.Before concluding whether moral judgments should form part of the work of legal theorists, it is helpful to consider some scenarios whereby there would be a natural overlap between law and morality and where there would not.Consider, for example, the laws that simply defend basic values, for example, the prevention of murder or rape, where law and morality work in tandem in all but the extreme cases.

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Legal theorists looking at taking an analytical approach are much more likely to be involved in discussions of the moral worth of legal concepts and are, therefore, the primary focus for this discussion.

It should be noted, however, that legal theorists in the other fields will often discuss the very same topic when looking at wider legal concepts.

One of the leading texts in this regard is that of Hart, The Concept of Law.

Although this was later criticised heavily, it laid down several key concepts and ideas surrounding how and why moral judgments should form part of legal theory.

If the two are to be deemed intertwined, it is not possible for theorists to consider one without the other as the issues and arguments are so strongly interrelated.

However, the position is not as straightforward as the early day philosophers may have believed.

It is in this area of thought that the main issues relating to the how and when moral judgment should form part of legal theory is discussed at length.

Essentially, and at the heart of legal positivism, is the notion that there is no inherent or necessary link between law and morality and that greater evidence needs to be brought in order for a legal concept to be deemed to have its foundations in a moral judgment and that this link should not necessarily be drawn.

The main argument advanced is for the fact that not all laws have the same ultimate effect.

For example, whilst one set of laws may place limits on an individual’s actions and what individuals within society (or a section of society) can undertake, other laws may offer rights without corresponding obligations.


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