Legal Reasoning A) in His Term Paper

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A d) the theoretical approach to legal reasoning that casts the most helpful light on judicial reasoning in determining whether or not evidence derived from torture should be admissible is legal positivism, as developed by H.L.A. Hart. Hart's approach to legal positivism focused strongly on the relationship between the law and morality. One would be hard pressed to describe an area where the relationship between moral behavior and the law is more at issue than in a question involving torture. The question is especially salient when a country may not have any influence over interrogation procedures, such as when the United Kingdom is relying upon interrogations performed in other countries. However, Hart's rule of recognition articulates the point-of-view that social norms should not always be legal norms. There is no question that the prohibition against torture is a widespread social norm, as reflected by the common law, informal international law, and the United Nations.

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However, the fact that torture violates social norms does not mean that it necessarily follows that torture should violate legal norms. In fact, Hart distinguished between primary and secondary legal rules, which helped explain gaps between social rules and legal rules. For example, there is no question that there exists, and that there should exist, a primary legal rule prohibiting the routine use of torture to elicit information from criminal suspects. However, Hart's position was that there are secondary legal rules that modify primary legal rules. These secondary rules can temporarily alter the application of the primary rule. These secondary rules, when spoken of in the context of rules of evidence, are the exceptions to general rules. Therefore, a law that recognizes that torture is morally repugnant and limits the admissibility of information elicited via torture to very specific situations falls into the theoretical framework established by Hart......

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