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Gustav Radbruch believed that positivistic theory renders both jurists and the normal person defenseless against our laws and legal system. He felt that no matter how arbitrary, cruel or criminal certain laws were, our legal process would make its ordinary citizens totally subservient to them. Morals would not alter precedence. This work will try to understand the works of H.L.A. Hart and some of his ideas that he held in response to Mr. Radbruch's philosophies. It is important to try to understand if H.L.A. Hart actually provided adequate responses to the criticisms made of Radbruch's philosophical ties. These questions, however, can only be asked, answered and understood if the reader first gets a full grasp of the underlying philosophies. What is positivism and how does it apply to the average person on the street. When discussed, is positivism the same as legal positivism? This report will try to address these issues and provide viable answers.
Explain why Radbruch believes
The famous German law professor and European political icon Gustav Radbruch had a short life but he used his time well. Gustave was infamous for his impact on our modern legal philosophies. "Gustav Radbruch is the first German lawyer, who was granted the honor of an entire edition as a lawyer, in other words not like Goethe as a poet or Max Weber as a sociologist. The 20 volumes of this edition, which preceded an eleven volume comprehensive Japanese edition, show how widely Radbruch's interests were spread. Legal philosophy, however, was always the centre of his attention. Without legal philosophy his work would not have the same importance." (Alexy) So the question of why Radbruch believed that positivistic theory rendered both the jurist and people defenseless against laws, however arbitrary, cruel or criminal they may be becomes a very critical point in our existing legal system. Radbruch was one of the greatest minds in the history of the legal community. Thus, there were basic differences between Gustav Radbruch and other traditional legal thinkers. "The vast majority of philosophers align themselves with one tradition of legal philosophy, either natural law or legal positivism, which have always been understood as antitheses. Until Radbruch, no major legal philosopher attempted to combine dialectically the central theses of traditional natural law theory and legal positivism. Quite simply, to do so is to confront contradictions." (Leawoods) Radbruch felt that we all are in a position that changes the ordinary and the extraordinary. "According to Radbruch, only by allowing the individual, in truly extraordinary times, to take the moral stand that a legal system has gone too far will citizens truly protect themselves from the intolerable perversions of their political leader. At all other times, Radbruch uses antinomies to evaluate the law according to a non-moral criterion." (Leawoods) He contended that justice asks two questions: are we all equal -- if not, how do we treat those who are 'more' good? "Before his conversion Radbruch held that resistance to law was a matter for the personal conscience, to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience." (Hart, 1958) The answer to why he believed that positivistic theory rendered the masses defenseless against laws was based on three general precepts: purposiveness, justice, and legal certainty. He defined statues precepts that allowed us to live together as human beings. Through the complete concept of law, he attempted to define laws' contents and outcomes as diverse views of the state. But, if a law was unjust, unfair or immoral, the idea of the positivistic theory would still make it mandatory to uphold that law even when the outcome could be considered an unjust application of that law. Therefore, whether the law was good or bad, we become hostage to it because it would still be upheld.
Positivism is a nothing more than a philosophy based on one having only authentic knowledge. In other words, one can only gather intelligent knowledge about things if they actual sense the experience. This eliminates many possible bases of knowledge such as the speculation of a metaphysical experience. The philosophy is centuries old but it became more strict in the 20th century as modern civilization became more technocratic. The technical and scientific minds who follow this way of thinking believe the knowledge acquisition must be limited to only natural, physical, or material methodologies.
To then apply these philosophic thinking to the legal system creates the concept of legal positivism. Legal positivism therefore is the process or theory of emphasizing the conventional nature of our legal system and statues. The legal positivism theory can be summed up into a few different areas of thought. The first two are the pedigree thesis and the separability thesis. Each of these philosophies key idea is that our laws have been created based on certain social conventions. A third thesis is called the discretion thesis which states that judges are who make our laws when they decide which cases do or do not fall clearly under some previous legal rule.
Both philosophies of law believe that the law is a man made convention. But positivists feel that in the majority of situations, the law offers guidance to its citizens and judges. Ethical thinking can be considered to be the major divide of legal positivism and legal realism. Historically, positivism came into existence because there was some opposition to the ideals of more classical natural law theory. The underlying problem was that there were moral constraints on what was the content of our laws. The actual word 'positivism' was most likely first used to help draw attention to laws that were more 'positive.' Those laws were not 'natural' because they did not originate from existing natural laws. Legal positivism as a school of thought in jurisprudence states:
There are no real connections between validity conditions as they pertain to ethics or even morality
Laws are simply rules made by men either purposely or by accident
Explain the response that Hart gives
Herbert Lionel Adolphus Hart was also a prominent professor of jurisprudence. Like Radbruch, he had many legal opinions and journals written such as "Positivism and the Separation of Law and Morals," "American Jurisprudence through English Eyes: The Nightmare and the Noble Dream," "Book Review of The Morality of Law," and "Essays on Bentham." Hart offers criticism for Radbruch in his article "Positivism and the Separation of Law and Morals." Hart begins by trying to understand the legal and moral position of Radbruch because, as Hart points out, Radbruch switched positions after the realization of how the Nazi' manipulated the legal system during World War II. Hart points out that Radbruch was pro-positivist and later become more natural. The cause of Radbruch's switch Hart contends is that Radbruch blamed the positivist legal approach for the horrors committed by the Nazis. "Radbruch, however, had concluded from the ease with which the Nazi regime had exploited subservience to mere law-or expressed, as he thought, in the "positivist" slogan "law as law" (Gesetz als Gesetz)-and from the failure of the German legal profession to protest against the enormities which they were required to perpetrate in the name of law, that "positivism" (meaning here the insistence on the separation of law as it is from law as it ought to be) had powerfully contributed to the horrors." (Hart, 1958) Many German thinkers that survived the Nazi Party clearly believed that the legal system caused the problem as opposed to the Nazi's manipulating it. The Utilitarians and Radbruch had to solve the problems that they believed were derived by morally evil laws in existence. "His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality." (Hart, 1958)
Hart response with reasons
I believe that Hart did provided valid responses to Radbruch's criticism. "For if we adopt Radbruch's view, and with him and the German courts make our protest against evil law in the form of an assertion that certain rules cannot be law because of their moral iniquity, we confuse one of the most powerful, because it is the simplest, forms of moral criticism." (Hart, 1958) Saying that laws are evil and therefore we should strike them as not being laws will never conform to everyone's way of thinking. "If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed." Consider that in the United States, it was at one time not legal for women to vote. The law was thought…[continue]
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