Monthly Archives: August 2017

Natural Law vs. Positivism

The philosophy of law is a complex and in depth study, which requires an intimate knowledge of the legal process in general as well as a philosophical mind. For centuries, the scope and nature of law has been debated and argued from various view points, and intense intellectual discussion has arisen from the fundamental question of ‘what is law’. In response, several major schools of thought have been born, of which the natural law scholars and positivists are two of the most notable. These two camps hold strictly contrasting views over the role and function of law in certain circumstances, and have provided in themselves platforms for criticism and debated which continue to be relevant today.

Although the classifications of natural law and positivism are frequently used, it is important to remember that they cover a very wide range of academic opinion. Even within each camp, there are those veering towards more liberal or more conservative understandings, and there is also naturally a grey area. Having said that, academics and philosophers can be enveloped by one of the categories on the basis of certain fundamental principles within their writings and opinions.

Natural law has always been linked to ultra-human considerations, that is to say a spiritual or moral influence determinant of their understandings of the way law operates. One of the founding principles is that an immoral law can be no law at all, on the basis that a government needs moral authority to be able to legislate. For this reason, natural law theories have been used to justify anarchy and disorder at ground level. This had lead to widespread criticism of the natural law principles, which have had to be refined and developed to fit with modern thinking. On the flip side, natural law has been used as a definitive method of serving ‘justice’ to war criminals and former-dictators after their reign.

Some of the strongest criticisms of natural law have come from the positivist camp. Positivism holds at its centre the belief that law is not affected by morality, but in essence is the source of moral considerations. Because morality is a subjective concept, positivism suggests that the law is the source of morality, and that no extra-legal considerations should be taken in to account. Positivism has been criticised for allowing extremism and unjust actions through law. It has also been suggested that positivism in its strictest sense is flawed because it ignores the depth and breadth of language in legal enactment, which means the positive law can be read in different lights based on differing meanings of the same word. Despite this, positivism has been seen as one of the fundamental legal theories in the development of modern legal philosophy over the last few decades, and is winning widespread favour through a contemporary academic revival.

Natural law and positivism have been the subject of an ongoing academic debate into the nature of law and its role within society. Both respective legal schools have criticised and built on one and others theories and principles to create a more sophisticated philosophical understanding of the legal construct. Although the debate is set to continue with a new generation of promising legal theorists, both natural law and positivism have gained widespread respect for their consistency and close analyses of the structure of law.

Minimising Tax Liability On Death

When we die, most of us leave behind a fairly substantial and intricate web of assets and liabilities, including money, our home and our other possessions. In most jurisdictions, there arises a liability to tax on death that must be borne from the totality of the estate, and this can lead to a significant reduction of inheritance for our loved ones. Having said that, there are a number of ways in which liability to tax on death can be vastly reduced whilst still ensuring sufficient legacies and provisions mortis causa. In this article, we will look at some of the most salient ways in which one can seek to minimise his estate’s liability to tax on death, and ways in which careful planning can help increase the legacies we leave behind.

Tax liability on death usually arises through bad inheritance planning, and a lack of legal consideration. Of course to a certain extent it is unavoidable, but with some care and consideration it is possible to reduce liability overall. There’s absolutely no point in making legacies in a will which won’t be fulfilled until after death and which haven’t been properly considered in light of the relevant legal provisions. If you haven’t done so already, it is extremely advisable to consult an attorney on minimising liability on death, and on effective estate planning to avoid these potential problems and to ensure your family are left with more in their pockets.

If you intend to leave legacies to family members of a specific quantity or nature, it may be wise to do so at least a decade before you die, which will ultimately divert any potential legal challenges upon death which would give rise to tax liability. Obviously there is seldom any way to tell precisely when you are going to die, but making legacies at least a decade beforehand avoids any liability that might be attached on death. In effect, donating during your lifetime well before you die means you can still provide for your family and friend without having to pay the corresponding tax bill.

Another good way to minimise tax liability is to get rid of assets during your lifetime by way of gifts to friends and family. One of the most effective ways to do this is to transfer your house to your children during your lifetime, or to move the house into a trust for which you are a beneficiary. This means you remain functionally the owner, but legally, the asset doesn’t feature in your estate on death and therefore doesn’t attract tax liability. Again, it is of great importance to ensure that the transfer is made well before death to avoid potential challenges and potential inclusion in the estate which would lead to inheritance tax liability.

Death is a particularly important phase in our lives, particularly in legal terms. The change between owning our own property and distributing ownerless property provides a range of challenges, and the controversial tax implications can cause serious problems. Without careful planning and an expert hand, it can be easy to amass a significant tax bill for your loved ones to bear. However, with the right direction, it can be easy to use the relevant mechanisms to minimise the potential liability to tax on your estate upon death.