legal philosophy-legal positivism

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Legal Positivi sm POSITIVISM * Positus * to posit, postulate, or firmly affix the existence of something

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Page 1: Legal Philosophy-legal Positivism

Legal Positivis

m

POSITIVISM* Positus* to posit, postulate, or firmly affix the existence of something

Page 2: Legal Philosophy-legal Positivism

Legal Positivism* a school of jurisprudence* only legitimate sources of law are those:

written rules, regulations,principles

* expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.

Page 3: Legal Philosophy-legal Positivism

“What is law?”

* all laws are nothing more and nothing less than

simply the expression of the will of whatever

authority created them

Page 4: Legal Philosophy-legal Positivism

*“legal rules or laws are valid not because they are rooted in moral or

natural law, but because they are enacted by

legitimate authority and are accepted by the

society as such”

* law is a social construction

Page 5: Legal Philosophy-legal Positivism

History of Legal Positivism and its

ProponentsTen Commandments

Page 6: Legal Philosophy-legal Positivism

Emperor Justinian

Page 7: Legal Philosophy-legal Positivism

John Austin

Thomas HobbesCommand theory of law

Page 8: Legal Philosophy-legal Positivism

Thomas Hobbes* “it is improbable for any statute to

be unjust”* “laws are the rules of just and

unjust”

* “to the care of the sovereign belongs the

making of good laws.”

Page 9: Legal Philosophy-legal Positivism

John Austin

* “dogma” of legal positivism

* “The existence of law is one thing; its merit

or demerit is another.”

* “command of the sovereign”

Page 10: Legal Philosophy-legal Positivism

Justice Oliver Wendell Holmes, Jr. * "prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law"

Page 11: Legal Philosophy-legal Positivism

Approaches to Legal

Positivism

* BACK TO JOHN AUSTIN

John Austin: “the existence of the law is one thing its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is another enquiry.”

Page 12: Legal Philosophy-legal Positivism

Separation Thesis* Hart: separation thesis is the essence of legal positivism* the law and morality are conceptually distinct

* inclusive positivism or also known as incorporationism or soft positivism* exclusive positivism or also called as the hard positivism

Page 13: Legal Philosophy-legal Positivism

Austin’s legal positivism

* BACK TO JOHN AUSTIN .. Again..

* the law must be entirely free of moral notions

* laws can, and do at least sometimes, reproduce or satisfy certain demands of morality

Page 14: Legal Philosophy-legal Positivism

Thomas Hobbes’ and John Austin’s Legal Positivism

* state is perceived as the creator and enforcer of the lawvested with the power to “inflict an evil or pain in case its desire is disregarded”

* law is the expression of the will of the state laying down the rules of action upheld by force

* wrong in the expression and enforcement of its will

no right can be claimed against it

Page 15: Legal Philosophy-legal Positivism

2 WAYS OF MANIFESTING THE POPULAR RESPONSE OF THE PEOPLE:

1) Electoral response - peaceable type

2) Revolutionary response- uprooting type

AUSTIN’S COMMAND THEORY OF LAW

Page 16: Legal Philosophy-legal Positivism

KELSEN’S PURE POSITIVE LAW

* Hans Kelsen, an Austrian jurist and philosopher* propounded the idea of a Pure Theory of Law, which is a theory of Positive Law

*general theory of law, not an interpretation of specific national or international legal norms; but it offers a theory of interpretation.* “pure” theory of law

because it aims to focus on law alone* aim is to free the science of law from alien elements

Page 17: Legal Philosophy-legal Positivism

* Kelsen: “the law is simply not pure when cluttered with axiological norms.”

KELSEN’S PURE POSITIVE LAWNORMATIVE LEGAL ORDER

Kelsen: the nature of the law “is not simply a system of coordinated norms of equal level but a hierarchy of legal norms of different level.”

KELSEN’S Grand Unchallengeable

Norm/Grand Norm

* came from the collective will, competence, and capacity of the people

* denoteS the basic norm, order, or rule that forms an underlying basis for a legal system

Page 18: Legal Philosophy-legal Positivism

Purpose of the Grand Norm

- need to find a point of origin for all law, on which the basic law and constitution can gain their legitimacy from

* no longer depends on the moral law or natural law for its validity

“is-statement” vs.“ought-statement.”

► “is-statement” -something is, or something is not done is expressive of a simple reason for action

► “ought-statement” -something should be, or something should be done, or something should not be done is expressive of a higher kind of reason for action

Page 19: Legal Philosophy-legal Positivism

Functions of Normative Legal

Order1)Prescriptive2)Authoritative3)Permissive

*The acts of the different branches of the government are considered as measures of coercion. Sanctions and

incentives are attached to a legal norm. This is what

distinguishes a legal norm from other social norms.

Page 20: Legal Philosophy-legal Positivism

Essential Attributes of the Law

1)Conscious formulation - distinguishes a rule or norm of positive law from a rule or norm of morality

2)Generality- Rules or norms must prescribe courses of conduct for all members of a society or for all members of a class

3)Authoritativeness- makes the law imperative and jussive, or making it not merely hortatory or advisory

Page 21: Legal Philosophy-legal Positivism

Positive Law vs. Natural Law

* Legal positivism is the view that law is fully defined by its existence as man-made law. Function of positive law is to define the natural law and make it explicit; to make it effective thru sanctions.

* Legal positivists do not believe in natural law in the legal ordering of society because natural law is not common to everybody.

Conflict with Historical View*A rule cannot be made before the occurrence of the facts it purports to regulate or govern. In the positivists view, the act has to happen before a rule can be made precisely to govern it.

Page 22: Legal Philosophy-legal Positivism

Critique of Legal Positivism•Lon Fuller

- denies the separation of law and morality

- whatever virtues inherent in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices

•Ronald Dworkin- denies that there can be any general theory

of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism

Page 23: Legal Philosophy-legal Positivism