In his works, he argues that the relationship between moral judgments and legal rules and theories are so intertwined that the issue of theory cannot be limited merely to descriptive roles but must, necessarily, have an interpretative element which requires a recognition and application of the surrounding moral judgments.When considering the role of the judiciary and the way that it deals with vague or new circumstances, Hart argues that it is establishing new laws, whereas Dworkin prefers the argument that judicial discretion of this nature is about making judgments as to what principles should be applied in the context of existing laws.At the centre of this book is the legal positivism approach which states that there is no automatic link between law and morality (or indeed between law and coercion).
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.
Normative theory looks at the area of what law should be and how punishment should be used, as well as whether or not it is acceptable to break the law in certain circumstances.
Critical to this discussion, however, is the field of analytical theory which requires questions such as whether or not there is (or ought to be) a relationship between law and morality and how exactly legal rules gain their validity.
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Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Law Teacher. Their area of jurisprudence requires an in-depth and intimate study of both the theory and the philosophy of law which, in turn, requires an acute understanding of the way in which the legal system works and the reasoning that is displayed by all entities within the system.Despite the potential depth of this study, there are three key areas of study within legal theory, each of which takes its own distinct view on how, if at all, moral judgments should impact on the way in which legal theorists analyse the issues before them.Natural law theory, for example, takes the point of view that there are laws of nature that cannot be changed and that the legal systems should work towards complementing these in so far as is possible.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.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.Social contracts and cultural norms have developed, as have the legal structures and concepts, so that the direct correlation can arguably be said not to exist.This is a position discussed by many, to the extent that it has now developed its own body of legal theory, referred to as legal positivism.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.