Legal Positivist Theory
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A Legal Positivist Theory is a legal theory primarily concerned with the sources of law and its nature as man-made.
- Context:
- It can be held by a Legal Positivist.
- It can (typically) posit that laws are the command of human beings, with no necessary connection to morality.
- It can have emerged mainly during the 18th and 19th centuries (influenced by thinkers like Jeremy Bentham and John Austin).
- It can differentiate between Legal Concept Analysis and a Historical Appraisal of Law.
- It can contend that:
- laws are commands of human beings;
- there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be;
- analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions;
- a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations;
- ...
- Example(s):
- a propounded in (Hart, 1961).
- a propounded in (Austin, 1832).
- ...
- Counter-Example(s):
- Natural Law Positivism, which posits a necessary connection between law and morality.
- Legal Realism, emphasizing the practical application and interpretation of laws.
- See: Natural Law, Analytical Jurisprudence, Empiricism.
References
2021
- (Wikipedia, 2021) ⇒ https://en.wikipedia.org/wiki/Legal_positivism Retrieved:2021-3-4.
- Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
- laws are commands of human beings;
- there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be;
- analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions;
- a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations;
- moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics). [1]
- Historically, legal positivism is in opposition to natural law's theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.
- Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
- ↑ H. L. A. Hart, "Positivism and the Separation of Law and Morals" (1958) 71 Harvard Law Review 593, 601–602.
1961
- (Hart, 1961) ⇒ H.L.A. Hart. (1961). “The Concept of Law.”
- NOTE: Detailed discussions on the fundamental principles of legal positivism.
1832
- (Austin, 1832) ⇒ John Austin. (1832). “The Province of Jurisprudence Determined.”
- NOTE: Austin's seminal work laying down the framework for legal positivism.