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Essay for foundations of legal philosophy

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George Eliot, in her book Silas Marner, wrote that the truth is somewhere in between, and it is my opinion that this applies to the Hart-Fuller debate (the Hart-Fuller debate being representative of the greater ongoing debate between the legal positivists and the natural lawyers). It is telling that, at least to me, in Hart's argument, the theory is strong but the practical is weak; whereas in Fuller's argument, the theory is weak but the practical is strong. This is consistent with what happened in reality: Hart the philosopher was supported by other philosophers, while Fuller the practitioner was backed by other practitioners. My purpose in indicating all this is to outline my own perspective of the debate: I think the positivist approach lends clarity to the relationship between law and morality, and is thus useful as a functional means. However, I find it unconvincing in the final test of reality, and this is where the natural lawyers' views win me over.

[...] Thus, I feel that there is some kind of natural affinity between the Confucians and the natural lawyers, because of their common moral core. Of course, I do not want to overstate their similarities, since, after all, commonalities can definitely be drawn between the Legalists and the natural lawyers, as well as between the Confucians and the positive lawyers. But it is true that they share the same basic inspiration?morality. In fact, Confucius not infrequently referred to the in more understandably translated terms, an inner moral law, which, in modern legal parlance, would be the natural law. [...]


[...] In both this issue and that of the comfort women, the Japanese state has denied the victims an official apology and compensation, insisting that there is simply no legal basis for either. In the case of the comfort women, claims for compensation under the Hague Convention and the International Labor Organization Convention Concerning Forced or Compulsory Labor have been rejected. While Japan has stated that individual comfort women have no right to compensatory claims under the former convention, the latter convention did not contemplate civil remedies. [...]


[...] The preliminary difficulty we encounter as a result of the entrance of international law is that its status in the Japanese national legal system is not clearly defined?that is to say, we do not know the relative force of international law on domestic law. This introduces an additional layer of ambiguity into the picture, in addition to the interpretative ambiguities that we have already come across. What I have found fascinating in this instance is that here, positivism as an approach comes to a standstill and becomes quite useless. The beauty of natural law?or perhaps what Fuller terms the ?inner morality of that it manages to shine forth in a much wider variety of circumstances than positivist law. [...]


[...] Finally, there is the question of apology and compensation too. This is relevant to both the recruitment of comfort women, as well as the victims of Unit 731. Unit 731 was a covert unit dedicated to the research and development of chemical and biological warfare, which was operated by the Imperial Japanese Army during the Second World War. It was involved in lethal human experiments, which were carried out not only without anesthesia, but also often while the victim was fully alive and conscious. [...]


[...] Thus, here we see how a system completely fails whose practice is based on a separation of law and morality. Firstly, that it was even established in the first place betrays a lack of moral knowledge irrigating the legal system. Secondly, that it was subsequently implemented is a good example of the ?positivist? ?fidelity to which Fuller repeatedly criticizes (insofar as he is accurate in doing so). Thirdly, not only was the system established and implemented, it is even continuously defended in the aftermath, based on grounds and by exploiting legal loopholes. [...]

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