Jurisprudence

The Legal Positivists' approach to the cases examined in this essay would probably be the same as that of the dissent. Legal Positivists would disagree with principles being taken into consideration because to them the outcome of the case should have been straightforward and based on the existing law at the time. Taking into consideration the fact that at the time when the offences had been committed there had not been an abolition of marital immunity for rape and that the applicants' acts did not fall within the category of exceptions, the Legal Positivists would argue that the applicants were right in their claim. As mentioned above, Legal Positivists will question a law not based on its quality as to being "good or bad", but on its validity. In this matter examined they could even argue that these cases were so clear in the wording of the law that they do not even qualify as "hard cases".
For a Legal Positivist like Professor Hart, who often differentiated himself from the ideas of other Legal Positivists such as Austin, Kelsen and Bentham, the approach to the issue would be different to the one of Professor Dworkin. …