Necmettin Erbakan Üniversitesi Hukuk Fakültesi Dergisi

Yazarlar: ["Hamdi Gökçe ZABUNOĞLU", "Onur ALTUNSU"]

Konular:-

Anahtar Kelimeler:Analitik Hukuk Bilimi,Olan ve Olması Gereken,Yargılama,Hart,Bodenheimer

Özet: Adjudication is one of the mandatory stages in the functioning of the law. Theoretical approaches aiming to deal with the law in all its aspects cannot neglect adjudication. Hart, the representative of analytical school of jurisprudence, distinguishes law from morality by analyzing the concepts exclusive to positive law and the relationship between these concepts. Bodenheimer, who adopts the natural law doctrine, aspire to bring up the necessary relationship between law and morality from different perspectives. According to him, the rules of law adopted by most societies are reflection of human nature and have a moral basis. The legislator is inspired by the moral judgments of himself or the society while establishing a rule. Another situation that reveals the relationship is that the judge receives support from moral principles in difficult cases. In difficult cases, the autonomy of the law is lost since the existing law is not interpreted as it is, but as it should be. For Hart, the relation of law to morality does not harm the principles adopted by analytical jurisprudence, because this relationship is not mandatory. Where both the legislator and the judge are claimed to have engaged in legislative activity, law cannot necessarily derive from morality. This discussion, which has not yet been examined in the Turkish legal literature, has been written to contribute to the comprehensive discussion and correct evaluation of analytical legal science.

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