Legal Positivism Would Lead to an Acquittal

The accused was given only 1 week prison sentence. In practice, it would be really unfair to the accused to sentence her so heavily in the sense that she only helped her mother. However, she has still committed a murder. That is why the judges decided to depart from legal positivism and adopt utilitarianism so as to assure that justice was given. This case depicts perfectly, the beauty of the law, whereby there is a balance between both legal positivism and natural law. Legal positivism came into play to say that euthanasia is illegal and utilitarianism plays the important role of giving her a reduced sentenced. If each of these two principles were to be used independently, the law would have created many unfair decisions in courts. Even though natural lawyers does not agree with legal positivist and vice versa, both contributed equally for the modern society. It is just a matter of application.

The next critical analysis is about a rape case on a prostitute. Even though the victim is a prostitute and the main activity of a prostitute is flesh trade, this does not mean that he or she cannot be raped. Rape can occur in many ways and the essence that makes an act become rape is the lack of consent. As soon as there is no consent to the sexual intercourse, the latter is becomes rape. The latter is a very serious but whenever it is committed on a prostitute, the people believe that it is not so serious since it is a daily activity of the victim. What we do not realise is that she did not consent to the act. It should still be treated as a very serious offence.

Utilitarianism will actually not be of great help in such a case, since the majority of the society will not actually be in favour of the prostitute as the have a belief that a prostitute will consent. It would make no difference to the population whether she is given justice or not. In this scenario, only legal positivism will help the courts to decide this case. Utilitarianism will not actually help courts in these types of cases since a reduced sentence, will not discourage rapist to commit more offences. Daniel-Nicolae Ilie was given a jail sentence of three years and four months for raping a prostitute in Bristol city. Judge Horton said that ‘like any woman in this country’, his victim was ‘entitled to her consent’. This decision was given purely by relying on legal positivism. Therefore in this scenario, it will be wrong to say that “Legal positivism tells us nothing of interest about how judges ought to decide cases…”

Another case we might look at is that of R v R, This concerns marital rape. The marriage did not work for a couple and the wife took their son to live with her parents. The couple was living separately but was not legally divorced yet. The husband broke into his in-laws house and tried to have sexual intercourse with his wife. However the wife never consented to the act and reported the crime. This incident took place in 1989 and prior to 1992, marital was not an offence. The case of R v R, which was heard in the House of Lords in 1991 changed the law to the degree that it verified that under UK law it was possible for a man to assault his better half.

The courts decided that, even inside a marriage, any non-consensual act is assault. This case is one whereby the law had retrospective effect. That is, the law was enacted later than the moment the act was performed. In broad terms, the when the husband committed the act, it was not even an offence. Yet the husband was charged and convicted for attempted rape on his wife. Legal positivism did not actually tell the husband whether he was infringing the law. The husband thought that marriage gave him an irrevocable consent, which would rather make sense, since the law never mentioned anything about marital rape. Moreover, legal positivism did not actually help the courts on how to decide this case as marital rape was legal until this case. The judges seemed to have leaned a bit more towards morality to decide the case as legal positivism would lead to an acquittal and not a conviction.

Further with our legal criticism, we shall take a look at the case of R v Bird. In the latter case, the defendant was slapped and pushed by her aggressor. The defendant was at the time holding a glass in her hand and without realizing that she had a glass in her hand, she tried to return hits to the aggressor. According to the law, the lady committed an offence. However, the law also has a provision which affirms that the accused acted in self-defense.

That is her act was justified. Looking at this from a natural lawyer’s perspective, the latter would agree that one will definitely try to defend oneself so as not to be prejudiced. A legal positivist would also agree that the accused should not be convicted since the law states that self-defense is indeed a defense and excused by the law. In such a scenario, we can find that both natural law and legal positivism would create the same outcome. It will again be incorrect to say that “legal positivism tells us nothing of interest about how judges ought to decide cases”. Legal positivism did tell the defendant that she was allowed to assault her aggressor and not abiding by the law. However, self-defense is regulated by Section 76 of the Criminal Justice and Immigration Act 2008 and one can still argue that the accused was still abiding by the law. In this case it is true that “Legal positivism tells us nothing of interest about […] when conscientious citizens and officials should disobey enacted laws.