In defence of the school of legal positivism Introduction Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather
critique of legal positivism through consideration of its origins, principle scholars, theoretical assumptions, limitations. It will include an example of relevancy through the complex and divisive issue of same-sex marriage. Legal positivism is a theory defined as, “a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation and that tries to understand the nature of law”(US Legal Dictionary
numerous legal theories. One notable theory in this area is legal positivism, which is often subdivided into classical and modern positivism. These concepts shall be in explored in greater depth later but in sum, legal positivism refers to law as man-made and separate from the concept of morality. This essay shall explain and critically evaluate the main features of both forms of legal positivism. Following this, Ronald Dworkin’s concerns with legal positivism, particularly with the role of legal principles
of law in Canada is most comparable with Legal Positivism. After analyzing the purpose of Legal Positivism, the similarities between it and Canada’s legal system become obvious. Both systems exercise the concept of primary and secondary rules, both contain a theory of legal obligation and lastly, both have a theory which answers for judicial interpretation. To understand the relationship between a system of government (such as Canada’s) and legal positivism, one must first understand the purpose
In the discussion of legal philosophy there is the ever occurring question “what is law”, many legal philosophers have attempted to answer such question but I believe the one philosopher to change the field entirely was John Austin. John Austion was the first modern legal positivist (and possibly founding father) to present a contemporary theory of law. Austin’s main interest in the philosophy of law was differentiating the reality of the law from the normative or moral merit of law. This in sense
alternative to positivism. The central claim of legal positivism states that "in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits". Dworkin completely rejects the positivist approach because he believes that "no combination of source-based rules, no matter how broadly construed or how carefully crafted can ground a theory of law". Dworkin is evidently making a big move away from positivism. The first
and also in turn entrenches them is one of great controversy in the legal community. The legal theories of legal positivism and critical legal studies take particularly opposing analysis and views of the law, as well as how law impacts on society. In order to illustrate my answer, I will draw from the idea of the protection of private property, and the criminalization and subsequent decriminalization of homosexuality. Legal positivism is particularly concerned with the validity of the law, and believes
Introduction: In “Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification” by Torben Spaak, he argues that he prefers to have reasons for preferring legal positivist to natural law theory and he also bring ups the laws of normativity. I will argue against a key point in the laws of normativity, regarding legal rights and I will also argue against that we should prefer legal positivist to natural law. Summary: Spaak argues about how there are reasons for choosing legal positivist
else. Legal Positivism: With a long history and broad influence, legal positivism, is discussed in mediaeval legal and political thought. Its roots lie in the conventionalist political philosophies of Hobbes, however, Jeremy Bentham, wrote its first full elaboration, that Austin adopted, modified and popularized (L. Green, 2003, Stanford Encyclopedia of Philosophy, Legal Positivism). It is sometimes associated with the homonymic but independent doctrines of logical or sociological positivism. Modern
relationship between law and morality through the perspectives of legal philosophers, I will provide a brief explanation of law, and what does law intend to achieve in the society. When discussing the relationship between law and morality I will consider the distinction between the theory of natural law and legal positivism and how these two theories influence each other and whether there is a legal or moral duty for the society to obey the law. Legal philosophers have tried to provide a brief explanation
and helped Shadrach escape to Canada. Eight of the people who helped Shadrach escape were charged with violating the Fugitive Slave Act. The jurors acquitted the emancipators even though they were clearly guilty. Using the legal theories of Natural Law, Legal Realism, and Positivism I will explore the ruling of the Morris jury. Natural law is a natural sense of what is right and wrong. Natural Law Theory states that laws are rational standards. Thomas Aquinas talked a lot about Natural Law Theory
on legal positivists. The early modern philosopher accepted the idea of individualism. Law can no longer be justified by natural law, but could only be justified in terms of the interests of the modern individual . The individual rights are placed at the forefront while the society and community are seen as a threat to the individual. The individual’s rights are protected against the community and society. Legal positivists’ theory is one of the most very important theories. Legal positivism is based
I will apply the two theories to the legal system in Nazi Germany. 2 Law and Morality H. L. A. Hart As a positivist, Hart believes that there should be a firm distinction between ‘law as it is’ and ‘law as it ought to be’, specifically law and morality. According to positivists, whether a law is valid or not is not dependant on the justification of said law, but rather that it is recognized as enforceable by tests that are enforced by an efficacious legal system. To better understand this theory
The world is wrought with dueling philosophies and principles. From political parties to legal ideologies, the world seems destined to be divided into some type of dichotomy. The legal philosophies of Positive and Natural law are no different. Many of us notice these differences, as most of the time they are quite obvious, but most of us do not, however, take the time to ponder and mull over in our minds just why these distinctions are important. It is not enough to say that two things are different
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and
expressed by principles of procedural justice, is required, since the internal and external moralities of law, “reciprocally influence one another.” In an attempt to prove that the desiderata are intrinsically moral and that ‘wicked laws can destroy a legal system’, Fuller invokes upon the moral values enshrined within law itself. Declaring law to be a “purposeful enterprise” subjecting humanity to the control of rules, law produces social order which involves respecting human autonomy and commitment
philosophers that I will be discussing are as follows; John Austin, H.L.A. Hart, Lon Fuller, Joseph Raz and Thomas Aquinas. I will also be answering three key questions about each philosopher and their philosophy. John Austin viewed law as a legal positivism, which is a term that separates moral rules of positive law, and suggested, “Where there is law, there are patterns of commanding and obeying” (Murphy, Mark 2006, p. 17). Law starts with society therefore, without society and the people that
Legal realism defines legal rights and duties as whatever the court says they are. Out of all the legal theories we have examined in class, I personally believe that this is the one that best exemplifies the purpose of law and would best suit and benefit society. The Dimensions of Law textbook defines legal realism as “the school of legal philosophy that examines law in a realistic rather than theoretical fashion; the belief that law is determined by what actually happens in court as judges interpret
Hart's Theory When Hart began forming his legal theory a dominant view in legal theory literature was that law is best understood as the command of a sovereign to its subjects. The 'command' theory most actively propounded by, and identified with Austin, explained law as a matter of commands by a sovereign who is habitually obeyed by others, but who does not habitually obey others. There are regular patterns of obedience to these commands, and legal obligations exist insofar as the failure
What is jurisprudence? One definition of jurisprudence is ‘’the philosophy of law, or the science which treats of the principles of positive law and legal relations’’. According to the above statement jurisprudence is simply the study of the fundamental nature of law or analysing the basis of man-made law and how they relate to one another. The study of jurisprudence can be said to be the analysing of man-made laws or positive laws. Jurisprudence focuses on determining the problems with man-made