Legal Positivism and Human Rights

healthy Positivism and piece Rights1.0 INTRODUCTIONThe statement which I accommodate to scrutinise Is the despotic separation of equity and goodity proposed by heavy positivism an obstacle to the acceptance of the notion of homo proper(a)s? for us to evaluate this statement first we convey to understand heavy positivism and the roots of human rights. Then I would discuss why practice of legal philosophy and deterrent exampleity plundernot be seperated and if seperated its adverse affects and how human rights and despotic rightfulness should be amalgamated.2.0 LEGAL POSITIVISMLegal positivism is a mentality in legalism that the existence and content of constabulary should depend on br other(a)ly incidents and not on merits.1 It is the view that morality has no weight in the law that is made and established as the law of the state. It should be followed and it is supreme heretofore immoral or unjust that piece of law or economy is. There are several legal thinker s who developed the idea of legal positivism, amongst them the more than or less prominent figures are Jeremy Bentham, John Austin and HLA hart.What we must keep in mind is that even domineering(p)s are divided into 2, inclusive and exclusive positivism. Inclusive positivists are sight who believe that moral constraints can be incorporated into law correspond to a societys belief. Even HLA Hart was an inclusive (soft) positivist who believe that the rule of recognition may incorporate as criteria of legal cogency con piddleity with moral principles or substantive values 2On the other hand are the exclusive positivists who believe that a legal system cannot integrate moral restraints on legal validity. They believe in the absolute command of the positive law. One of prominent exclusive (hard) positivists was Joseph Raz who was actually a student of HLA Hart.3.0 NATURAL LAW AND DERIVATION OF clement RIGHTS FROM NATURAL LAWNatural law is the direct opposite of positive law, an d is what is defined as gods law or standard law, which has no loop holes as in manmade law. It is law which is based on morality rather than legality believing that any man made law which is not morally correct is not law at all. Naturalists argue that positive law is always evolving to attain the threshold of natural law.Some prominent figures who argued for the supremacy of natural law and morality were St. doubting Thomas Aquinas and Thomas Hobbes. The foundation of natural law is religious beliefs and moral rights and wrongs as shown through emerge history.The notion of human rights, I believe, is derived from natural rights, which in depart state is derived from religious and moral beliefs. So the external bill of human rights we see today actually is a child of natural law itself. John locke, a follower of Thomas Hobbes, and a renowned philosopher, while writing about natural rights in Two Treatises Of Government, has said that men are by spirit free and equal against cla ims that God had made all people naturally subject to a monarch. He argued that people have rights, much(prenominal) as the right to life, liberty, and property that have a foundation independent of the laws of any particular society 3This is exactly what is entrenched in the International Bill of benevolent rights today. So it is logically arguable, and it is my belief that Human rights is actually natural law/ natural rights itself, in another form, trying to impose supremacy over positive law just deal in the eras passed. Thus if natural law is not accepted as being a part of positive law, human rights can never be truly accepted.4.0 WHY LAW AND MORALITY CANNOT AND SHOULD NOT BE SEPERATEDThe contest for the separation of moral and legal rights is a heated debate still ongoing. One of the most remarkable statements regarding this topic was made between HLA Hart and Lon L. Fuller, the latter stating that legal and moral rights can never be separated.Hart argued that there shou ld be a severe separation of law and morality, he denied that there are universally shared requirement moral standards of legal validity and he also denied that an individual recognizes law as good law based on morality and that individuals may do it based on rigorously non moral affectations.4Fuller argued that law and morality cannot be separated because they are naturally connected. He found the connection between law and morality in the very heart of positivism, the law makers. He gave 8 ways to fail to make a law stating that these rules are necessary as they make an familiar morality of law. 5In his Journal article Positivism and the Inseparability of Law and Morals, Leslie Green has argued that law and morals in fact cannot be separated and sooner of the mistaken separability test he had brought into light the underlying fallibility test. 6Keeping the philosophers arguments aside we can take a scenario to consider what would happen if law and morality were purely separa ted. If the law making body, the parliament, if they believed in this strict separation and if they had no sense of moral values in their society while making law, and if they passed a legislation which is incompatible with the society beliefs, it would cause havoc. The government that passes such a bill is destined to fall as proved by history with Margaret Thatchers end after passing the poll tax. For example if they passed a bill allowing gay marriage in a strictly Wahhabi Muslim society, it is bound to be met with abhorrence and index be taken as an insult by the society.5.0 AMALGAMATING HUMAN RIGHTS AND POSITIVE LAWOne can say that the notion of human rights have already been incorporated with positive law of UK after the enactment of Human Rights bout of 1998. Its entrenched nature and per s.3 of the Act all legislation passed, have to be compatible with Individual human rights.7 And if any legislation is incompatible with human rights courts can declare it incompatible un der s4 of the HRA 1998 and advise the parliament to make the necessary rectifications.8This power of the HRA 1998 can be shown in the recent case of R (Royal College of Nursing) v SSHD (2010) 9where Schedule 3 to the Safeguarding Vulnerable Groups Act (SVGA) 2006 was incompatible with Art 6 as the listed person was denied the right to make representations in advance of being listed. The Section 67(2) and (6) of the Protection of Freedoms Act 2012 came into being to amend this Schedule as a result.6.0 POSITIVE LAW SUPREME IN UKAs we know UK is a dualist country meaning it does not heed to international laws or EU laws. It needfully its domestic laws to be enacted by the parliament for them to be legally enforceable. This results in a supreme parliament which can bend law at imagination (as can be shown in the delay enacting HRA 1998). Even the power vested in courts by HRA 1998 in the form of declaration of incompatibility is a toothless mend when dealing with an unjust legislatur e. Because these declarations are not authoritative, they are just persuasive, so the parliament is does have a choice to keep the legislation as it is in spite of declaration of incompatibility. Another subject which shows the supremacy of positive law in UK, is the Prime ministers hinting on the repealing of the HRA 1998 without a proper backup plan. 107.0 ACCEPTING HUMAN RIGHTS AS MORAL CLAIMS OR POSITIVE LAWWhile analyzing the given statement I came upon two ways in which it could be addressed and according to that I could give my opinion on the validity of the statement. Those two ways are, that human rights could be accepted as moral claims as the statement suggests and thence we can evaluate how the separation of morality and law could affect the acceptance of human rights. The second way is that we could claim that human rights is no longer moral claims but positive law, and then see how the separation of law and morality affects it.7.1 ACCEPTING HUMAN RIGHTS AS MORAL CLAIM SIf Human rights are moral claims as the statement suggests then it is vital not to have any separation between law and morality. If law and morality is strictly separated as the ideal positivist suggests11 then human rights wont have the supremacy and power it needs to universally protect the rights of individuals. They need to overwhelm any form of positive law which clashes with it.Human rights are normally accepted as having their basis in morality because natural rights was derived from religious beliefs. I, believe that, both human rights and equity are children of natural law, and for in order for them to be successful, they need to incorporated with positive law but be powerful enough to overcome shackles of positive law. Though the supremacy of equity is not disputed, the supremacy of human rights is.If human rights are moral claims which has no legal validity, accepting them would be heavy in the light of the separability thesis brought forward by Hart12. If legal positi vism is the right mindset and if the Human rights have no legal value, how are the rights of people going to be universally protected? How can one accept Human rights?For example, if a country passes horrific laws which conflict the most inviolable rights and if there is no way it can be remedied, the world would fall into chaos. If UK passed a law which says all men shorter than 5 5 should be killed, and if the UDHR has no legal power, no authority, how are the right to life of many people going to be protected? One might say, the parliament would not pass such a bill, but what is stopping them from doing so? There are no legal restrictions to a supreme parliament as in UK, the only liaison restraining the legislators from passing such legislation is just one thing. Their moral values.In this context, I would agree with the view of Leslie Green in his article positivism and the inseparability of law and morals13, where he has argued at length that the separation thesis is actuall y a mistake and had upheld the fallibility thesis.7.2 ACCEPTING HUMAN RIGHTS AS POSITIVE LAWI pose it more worthy to say, that Human rights is no longer moral claims, after the passing of the International Bill of Human rights (Universal Declaration of Human rights 1948, International pledge on Economic, Social and Cultural Rights 1966 and the International Covenant on Civil and Political Rights 1966) the notion of Human rights is now actually positive law.The heart of this international Bill of Human rights, the Universal Declaration of Human rights 1948, which prescribes inviolable rights for humans, regardless of where they are born, has been endorsed by most/all the countries in the world. But the problem is, dualist countries like UK, might not endorse the Declaration into their constitution (as can be inferred from their delay in enacting HRA 1998 and the unavailability of remedies for such issues until the enactment of the Act).My belief, that the notion for human rights i s no longer moral claims and is universal, can be proved by various incidents. Human rights is no longer based on religious or moral rights and wrongs. I say this, because immorality is a subjective query, it will change from person to person and society to society and from era to era.For example, in a strict Muslim community it might be immoral to wear clothes which expose a lot of skin, but in a modern rainbow society, it might be taken as a norm. For example in USA, women would consider it immoral and against their belief to wear clothes showing their waist, but in India women consider it immoral to show their hair thus wear clothes that cover their hair but they dont mind wearing Saris which expose their waist.So if we were to consider that Human rights to be based on moral claims, it can never be universally accepted because what is moral, is subjective. But this is not the case Saudi Arabia and Irans pressure to make the Cairo Declaration of Human rights in Islam of 1990, to be accepted as the Islamic alternative to international human rights, during the 1993 World concourse on Human rights in Vienna was strongly rejected by the UN Secretary General Kofi Anna, who maintained that the human rights are universal.Thus, as moral claims change from time to time, society to society, individual to individual, human rights is no longer moral, as it is universal and invariable, wherever the individual is. So I believe that through the smoothen of time, human rights have actually evolved into positive law now.Since it is positive law, the separation of law and morality proposed by positivism, no longer has any effect on the acceptance of the concept of Human rights.8.0 CONUCLUSIONThe notion of human rights cannot be accepted without accepting the role of morality in positive law. Because if the statement is correct and if Human rights is indeed moral claims then morality needs to be accepted for it to be incorporated into legal systems today.But I find it more suitable to say, that Human rights is no longer moral claims, after the passing of the International Bill of Human rights) the notion of Human rights is now actually positive law. Since it is positive law now, the separation of law and morality proposed by positivism no longer has any effect on the concept of Human rights.The other thing which must be brought into light is that even though human rights is entrenched into the legal system of UK it is not properly followed. If it was properly followed, how can Acts, with provisions which infringe rights of people such as section 44 of Terrorism Act 2000 get enacted? How do they pass the scrutiny of parliament without being noticed? The fact they make it through the parliament shows the weakness of positive law and its failure to protect peoples rights.The present regime of UK has been hinting on repealing HRA 199814 and withdraw out of EU(though now being denied by David Cameron15), but this would only make human rights lose its posit ive law status in UK and result in more infringement of rights. Repealing the HRA 1998 might not be a bad idea with the proper preparations and a backup Act or Bill of Rights which is set in stone and has much superior power than HRA 1998 (as the declaration of incompatibility is a toothless remedy which does not enforce the parliament to amend an incompatible legislation).So I believe if HRA 1998 is repealed it should be substituted by a stronger Bill of Rights which has a better remedy than declarations of incompatibility etc. And if such a bill is passed, the legal validity of human rights would no longer be in doubt. The bill which was withdrawn at the end of the debate on 1st March 2013, Human Rights Act 1998 (Repeal and Substitution) Bill 2012-13, certainly lacked this forceful authority. 16Word Count is 2524 (Excluding Contents and Bibliography)9.0 BIBLIOGRAPHY9.1 Table of CasesR (Royal College of Nursing) v SSHD 2010 EWHC 27619.2 Table of StatutesHuman Rights ActSection 3Sec tion 49.3 Text booksHart, H. L. A.Concept of Law.Oxford Clarendon, 1994. PrintFuller, L. L. The Morality of Law. new-fashioned Haven and London 1961 ebook.9.4 ArticlesGreen, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming Oxford Legal Studies enquiry Paper No. 15/2008. Available at SSRN http//ssrn.com/abstract=1136374 accessed 04th January 2014Green, Leslie, Legal Positivism, The Stanford Encyclopedia of philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = .Tuckness, Alex, Lockes Political Philosophy,The Stanford Encyclopedia of Philosophy(Winter 2012 Edition), Edward N. Zalta(ed.), accessed on 05th January 2014 URL = .9.5 WebsitesMason, Rowena. David Cameron eye Human Rights Act Repeal.Theguardian.com. Guardian intelligence information and Media, 08 Aug. 2013. Web. 05 Jan. 2014. .David Cameron Rejects EU Withdrawal Calls and Attacks Tory pessimistsTheguardian.com. Guardian News and Media, 09 May 2013. Web. 05 Jan. 2014. .Human Rights Act 1998 (Repeal and Substitution) Bill.Human Rights Act 1998 (Repeal and Substitution) Bill. N.p., n.d. Web. 05 Jan. 2014. .1 Green, Leslie, Legal Positivism, The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = .2 Hart, H. L. A.Concept of Law.Oxford Clarendon, 1994. Print. P2503 Tuckness, Alex, Lockes Political Philosophy,The Stanford Encyclopedia of Philosophy(Winter 2012 Edition), Edward N. Zalta(ed.), accessed on 05th January 2014 URL = .4 Hart, H. L. A.Concept of Law.Oxford Clarendon, 1994. Print. P1985 Fuller, L. L. The Morality of Law. New Haven and London 1961 eBook. P39-426 Green, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming Oxford Legal Studies Research Paper No. 15/2008. Available at SSRN http//ssrn.com/abstract=11363747 Section 3 Human Rights Act 19988 Section 4 Human Rights Act 19989 R (Royal College of Nursing) v SSHD 2010 EWHC 276110 Mason, Rowena. David Cameron Eyes Human Rights Act Repeal.Theguardian.com. Guardian News and Media, 08 Aug. 2013. Web. 05 Jan. 2014. .11 Hart, H. L. A.Concept of Law.Oxford Clarendon, 1994. Print12 Green, Leslie, Legal Positivism, The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.),accessed 04th January 2014 URL = .13 Green, Leslie, Positivism and the Inseparability of Law and Morals. New York University Law Review, Forthcoming Oxford Legal Studies Research Paper No. 15/2008. Available at SSRN http//ssrn.com/abstract=113637414 Mason, Rowena. David Cameron Eyes Human Rights Act Repeal.Theguardian.com. Guardian News and Media, 08 Aug. 2013. Web. 05 Jan. 2014. .15 David Cameron Rejects EU Withdrawal Calls and Attacks Tory pessimistsTheguardian.com. Guardian News and Media, 09 May 2013. Web. 05 Jan. 2014. .16 Human Rights Act 1998 (Repeal and Substitution) Bill.Human Rights Act 1998 (Repeal and Substitution) Bill. N.p., n. d. Web. 05 Jan. 2014. .