Friday, October 23, 2009
A flip on internal v. external morality
I do not believe that we can place to much emphasis on this theory of internal and external morality relating to law. There is a large demographic of criminals that do not share the same sense of morals as the majority of the population. With this being said how could they be compelled to explain and justify their decisions towards goodness if they are not sharing the same sense of goodness with the general public. Some heinous crimes that are committed only have an internal sense of morality, however skewed that may be. Harts claim that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness". What sense of goodness could a child rapist pull his acts towards. The public is very unforgiving for sexual offenses, especially against children. While criminals of this pedigree may be able to internally justify their actions, there is no possible case that they could make to externally justify what they did. Because of this, I do not believe that legal scholarship can place much belief in Fuller's claim. It is for this reason that legal positivism must be the overruling law theory in order to most effectivley govern a group of peoples. Morals should not be brought into the penumbra cases where the core solidified meaning of precedents are debated. These precedents should be followed becuase of the legislation that comes out of them, not the morals that they were decided upon. Whether or not this sense of morality could have effectively worked in the court room a few decades or centuries ago, with our society today, legal positivism must dictate that legal scholarship follow the letter of the law in all cases.
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