Characteristics Of Legal Positivism

1094 Words3 Pages
bulb-icon

Recommended: Importance of legal positivism

Jurisprudence is a subject area filled with 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 shall be explored. Finally some concluding thoughts shall be given.

Classical positivism is most associated with Jeremy Bentham and John Austin. This theory is somewhat inspired by Thomas Hobbes, …show more content…

He rejected its neglect for including morality with regard to the law, arguing it was impossible to separate these two concepts and that morality influenced the legal system through legal principles. Legal principles that were drawn from common law supplemented existing legal rules he argued, acting as an indication and guide towards what the law ought to be. Due to their uncodified status, principles were more adaptable and better positioned to maintain justice over a lengthy period of time. Dworkin also boldly stated that the presence of legal principles indicated that there was one correct outcome to all legal cases; it was simply the task of judges to discover it. What can be drawn from Dworkin is that he believed legal positivism defined the law too narrowly; with the inclusion of legal principles he argued a more inclusive description could be …show more content…

Principles he argued acted not merely as a guide but also as a restraint upon judges; he argued this was crucial to ensure both legal certainty and to reduce the prospect of judges acting outwith their powers for justification. Judges therefore would be expected to weigh in legal principles, as well as legal rules when reaching their judgment. This is a somewhat accurate analysis, particularly when the concept of stare decisis is considered, which is the doctrine where courts of equal or lower standing are bound previous court decisions on similar principles. In practice this binds the judiciary to past legal principles in most cases; Dworkin however failed to account for when judges ought to depart from established principles. In particular where judges feel it would be detrimental to continue to follow past precedent. The following example sets out a case where judges broke with past principle after they felt the existing precedent was

Show More
Related

  • The Case of R.V Machekequonabe

    2245 Words  | 5 Pages

    However, after looking at the facts, and the ruling, Dworkin's theory of law and judicial reasoning provides us with the most satisfactory explanation, and also shows that rulings, when applying social principles are meant to enhance society and bring about social growth.

    Read More

  • Case Analysis Of John Deere

    1054 Words  | 3 Pages

    Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be

    Read More

  • Legal Research, Writing, And Analysis

    1457 Words  | 3 Pages

    An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.

    Read More

  • Riggs V Palmer Case Study

    1528 Words  | 4 Pages

    It is no surprise as to why the case Riggs v Palmer is such a renowned case, for this case tests the importance of many of the philosophers’ theories, especially on the validity of certain laws and the conflict between law and morality. This hard case has been used as a reference for many court decisions over the years and will be most likely used in the future as well. An inference can be made based on this case and the legal conflicts and issues that the judges faced when reaching their verdict. Those who commit the crime should not be rewarded by attaining what motivated them in the first place as the fruit of their crime, and in the event that such a crime occurs, judges must interpret the law in the same manner that the law makers intended

    Read More

  • Essay On Constitutional Interpretation

    1502 Words  | 4 Pages

    Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,

    Read More

  • Justification of Punishment!

    2840 Words  | 6 Pages

    ABSTRACT: Both utilitarians and the deontologists are of the opinion that punishment is justifiable, but according to the utilitarian moral thinkers, punishment can be justified solely by its consequences, while the deontologists believe that punishment is justifiable purely on retributive ground. D. D. Raphael is found to reconcile both views. According to him, a punishment is justified when it is both useful and deserved. Maclagan, on the other hand, denies it to be justifiable in the sense that it is not right to punish an offender. I claim that punishment is not justifiable but not in the sense in which it is claimed by Maclagan. The aim of this paper is to prove the absurdity of the enquiry as to whether punishment can be justified. Difference results from differing interpretations of the term 'justification.' In its traditional meaning, justification can hardly be distinguished from evaluation. In this sense, to justify an act is to say that it is good or right. I differ from the traditional use and insist that no act or conduct can be justified. Infliction of punishment is a human conduct and as such it is absurd to ask for its justification. I hold the view that to justify is to give reason, and it is only a statement or an assertion behind which we can put forth reason. Infliction of pain is an act behind which the agent may have purpose or intention but not reason. So, it is not punishment, but rather statements concerning punishment that we can justify.

    Read More

  • The Problems Created by the Doctrine of Judicial Precedent

    1530 Words  | 4 Pages

    Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.

    Read More

  • Ronald Dworkin Law As Integrity Essay

    2611 Words  | 6 Pages

    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 then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.

    Read More

  • Comparing Positive and Natural Law

    1441 Words  | 3 Pages

    Positive law can be considered the ‘politically correct’ approach to authority and justice. It encompasses the idea of a society and community with laws, and that those laws are necessary for everyone’s well-being. Kreon evokes a Positivist attitude by shunning any morally appropriate notions brought on by his kinship with Polyneices, and pursuing a stance that he sees as politically necessary for the good of the society. This is the underlying reason for his decision to forbid t...

    Read More

  • Classical Theory: Cesane Beccaria and Jeremy Bentham

    1636 Words  | 4 Pages

    Crime have existed over many centuries, different eras affect the flow of crime and within those eras. Furthermore amongst individuals, there was different way of thinking into how to reduce and eliminate occurred. The act of crime cannot be eliminated, as different individuals have different perspectives of crime and for theses reasons, have different methods of advocating and eliminating crime. This essay will firstly explore the views of Classical Theory, by looking at Cesane Beccaria, the father of Classical theory and Jeremy Bentham, the founder of Utilitarian and explore how there influences are incorporated into laws and regulations, around the world. Secondly, Positivism theory explores the biological, psychological and environment understanding of what causes the crime, thus having a different understand and method into solving and eliminating crime. By looking at these overarching theories, we can come to understand how they both are beneficial and incorporated into the laws within our society, however does now have the power to rid it of crime.

    Read More

  • Criminology in the Past and Today

    1127 Words  | 3 Pages

    The Law today is a summary of various principles from around the world from the past and the present. Early practises of law were the foundation of the law that we know and abide by today. These practises were referred to as the Classical school. Over time however, different criminologist have altered and greatly improved the early, incomplete ideas and made them more complete and practical to more modern times. This newer version is referred to as the Positivist school. This rapid change from the classical to the positivist perspective was due to the change and growth of civilization. Even though one perspective came from another, they are still different in many ways and it is evident when relating them to section 462.37, Forfeiture of Proceeds of Crime, and section 810, Sureties to keep the Peace. The Classical School of criminology’s time of dominance was between 1700 and 1800. Its conception of deviance was that deviance was a violation of the social contract. Classical theorists believed that all individuals were rational actors and they were able to act upon their own free will. A person chose to commit crimes because of greed and because they were evil. The primary instrument that could be used in regards to the classical school to control crime was to create “criminal sanctions that instil fear of punishment in those contemplating criminal acts” (Gabor 154). Classical school theorists believed the best defence was a good offence and therefore they wanted to instil so much fear into people about what would happen to them if they were to commit a crime that even those who were only thinking of committing a crime were impacted greatly. The classical school individuals operated entirely on free will and it was their ...

    Read More

  • John Austin's Command Theory Of Law And Morality

    1254 Words  | 3 Pages

    The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that

    Read More

  • Logical Positism and the Vienna Circle

    1198 Words  | 3 Pages

    Hanfling, Oswald, Logical Positivism (New York: Columbia University Press, 1981), p. 24-71. (I read this book and got some ideas, but no quotes)

    Read More

  • Rule Of Law Essay

    1020 Words  | 3 Pages

    Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.

    Read More

  • The Albazero Case Study

    892 Words  | 2 Pages

    The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:

    Read More

More about Characteristics Of Legal Positivism

Open Document