The United States in the late twentieth century is sometimes described as a „culture of rights,“ as opposed to Japan, which is sometimes described as a „culture of duty.“ However, when individuals and groups representing a range of political and religious views seek to formulate basic moral demands that apply in various cultural contexts, such as the United Nations, they often formulate those moral demands in relation to human rights. Therefore, the concepts of rights and human rights are widely used today, although the concept of rights emerged only in the seventeenth century in relatively individualistic societies. Natural law provides naturae norma, the measure of legal validity of positive law and custom. Naturae norma offers the only way to separate the good from the poor supply. Justice means that laws and customs conform to naturae norma and preserve the peace, happiness and security of the state and its citizens. Positive laws and customs that do not do so are not considered laws at all. (Cicero, De Legibus, 1.44, 2.11-2.14). A second issue concerns Austin`s view that sovereign legislative authority cannot be legally limited. According to Austin, a sovereign cannot be legally restricted because no person (or partnership) can constrain itself (or itself). Because constitutional provisions limit the legislative power to legislate, Austin is forced to argue that what we call constitutional law is not law at all; rather, it is primarily a „positive morality“ (Austin 1977, p. 107). Positive rights to health care and education are often considered fundamental human rights. The nature and scope of a right to health care is widely debated in the United States today.
Many people also claim that everyone has the right to basic education, and in fact, public education in the United States is required by law for everyone. Recent legislation reaffirms the right of persons with disabilities to education in the least restrictive environment possible. This amendment shows how views on the scope of these rights are evolving. Natural law theory emphasizes the moral dimension of law. Natural law theory recognizes universal moral principles as the primary source of valid law. These moral principles provide a standard of legal validity that imposes moral limits on the coercive powers of the ruler. Major natural law theorists include Aristotle, Cicero, Justinian, and Thomas Aquinas. These challengers undermined Blackstone`s validity standards, but they did not replace them. A schism of validity divides American jurisprudence.
There was no universally accepted standard of validity in American law. Academic theorists and legal educators favored Hart for his analytical clarity. Liberal justices favored Hart for expanding their power to enact new laws. Conservative practitioners and judges favored Blackstone because of its emphasis on the consent of the governed, autonomy of the law, predictability of the law, and morally just decisions. Despite its resemblance to this earlier critique, Dworkin`s semantic argument serves a deeper purpose. The semantic spur refers to all so-called semantic legal theories, which define the concept of law in the sense of „common rules“. established the criteria that give meaning to the word“ (Dworkin 1986, p. 31). Thus, while the preceding critique is directed against Hart`s alien presentation of social rules, the semantic spur is directed against what Dworkin sees as the core of the theoretical core of positivism, namely the assertion that there are common criteria that exhaust the conditions for the correct application of the concept of law.
If a person not only has the right to do something, but is also morally obligated to do so because of a role assumed or an agreement, we say that the person has an ethical obligation or duty as well as a right to do the thing in question. An ethical duty or obligation is a moral requirement to follow a certain action, that is, to do or refrain from doing certain things. For example, many technical codes of ethics provide that engineers have a moral right to deal with misconduct issues outside their organization, but they are also required to do so when public health and safety are at stake. Hart is also critical of Austin`s view that legal obligations are essentially coercion. According to Hart, there is no difference between the ruler of Austin, who rules by coercive behavior, and the shooter, who orders someone to hand over their money. In both cases, the subject can presumably be characterized as „obliged“ to follow orders, but not as „conscientious“ or „obliged“ (Hart, 1994, p. 80). According to Hart, the use of coercive force alone cannot give rise to a legal or other obligation. Legal principles, like other laws, may be adopted or repealed by legislators and administrative authorities. They may also become legally binding by court order. Many legal systems recognize that rules and principles may be enshrined in law or lose their status as law by case law (Raz 1972, p.
848). Hart showed how to separate law and morality, but history has shown why corporations should not. Critics argue that a new approach is needed. Aristotle wrote his philosophy of law to avoid the catastrophes described in his Athenian constitution. Aristotle accepts the necessity of the political dimension of law because laws cannot prevail. Nevertheless, Athenian legal history proves that the political dimension is not sufficient to sustain a society or achieve its happiness. Radbruch accuses the positivist legal thought that dominated German jurists of rendering impotent any possible defense against abuses of National Socialist legislation. Radbruch warns: „We must arm ourselves against the repetition of an outlaw state like Hitler`s by fundamentally overcoming positivism.“ Radbruch`s solution is a norm of legal validity that refers to the moral dimension of law. (Radbruch 2006a, p. 8). Standards of legal validity are historically cyclical, and the cycle has continued in the United States throughout the 21st century.
U.S. law originally adopted Blackstone`s two standards of validity based on moral principles and legal customs. Centuries of challengers have eroded these norms. Bentham, Austin, Holmes, and Hart undermined Blackstone`s moral standard by advocating the separation of law and morality. Pound undermined Blackstone`s usual norm by advocating abandonment of the common law. Legal educators have removed Blackstone from their curriculum. The second historical restriction, emphasized by Locke and Blackstone, is the requirement of validity of the consent of the governed. Consent is not relevant to Hart`s legal validity. It is enough for every member of the population to obey Hart`s primary rules „for whatever reason.“ „All motives,“ as Hart`s critics point out, include terror and violence. Similarly, in the minimum legal system, only officials of the legal system adopt the internal position on the recognition rule, which gives them the power to issue, implement, decide and enforce the rules. The mere existence of a belief in officers that they have the right to legislate cannot create an obligation for others to comply with their orders, any more than the presence of a believer of an armed person that he is entitled to give orders creates an obligation for the victim to obey those orders.