Legal Philosophy-legal Positivism

POSITIVIS M * Positus * to posit, postulate, or

Legal firmly affix the Positivis existence of something m

Legal * Positivism a school of jurisprudence

* only legitimate sources of law are those: written rules,adopted, * expressly enacted, regulations, or recognized by a principles governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.

* all laws are nothing more and nothing less than simply the expression of the will of whatever authority created

“What is law?”

*“legal rules or laws are valid not because they are rooted in moral or * law is a social natural law, but because construction they are enacted by legitimate authority and are accepted by the society as such”

History of Legal Positivism and its Ten Proponents Commandments

Emperor Justinian

John Austin

Thomas Command theory of Hobbes

* “it is improbable for any statute to * “to Thomas the care of be unjust” the Hobbes sovereign * “laws are the belongs the rules of just and making of good unjust”

* “dogma” of legal positivism John * “command * “The existenceofof law Austin the sovereign” is one thing; its merit or demerit is another.”

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

John Austin: “the existence of the law is Approaches to one thing its merit or demerit isLegal another. Whether it be or be not is Positivism one enquiry; whether it be or be not conformable to an assumed standard, * BACK TO JOHN AUSTIN

* inclusive positivism or also * Hart: separation thesis is known as incorporationism or soft the essence of legal positivism * exclusive positivism or also

Separation positivism called as the hard positivism Thesis * the law and morality are conceptually distinct

Austin’s legal positivism

* the law must be entirely free of moral notions * laws can, and do at least sometimes, reproduce or satisfy certain demands of morality

* BACK TO JOHN AUSTIN

.. Again..

Thomas Hobbes’ and John Austin’s Legal Positivism * state is perceived as the creator *and law enforcer is the expression of the will of of the law the state laying down the rules of vested with the power to “inflict an action upheld by force evil or pain in case its desire is disregarded” * wrong in the expression and

enforcement of its will no right can be claimed against it

2 WAYS OF MANIFESTING THE POPULAR RESPONSE OF THE PEOPLE: AUSTIN’S COMMAND THEORY

OF LAW

1) Electoral response - peaceable type 2) Revolutionary response - uprooting type

KELSEN’S PURE POSITIVE LAW theory of law, not an ***general Hans Kelsen, an Austrian propounded the idea of ajurist interpretation of specific and philosopher Pure Theory of Law, which is a national or international legal theory of Positive Law 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

KELSEN’S PURE POSITIVE NORMATIVE LEGAL ORDERLAW KELSEN’S Grand

Unchallengeable Kelsen: the nature of the law Norm/Grand Norm

“is not simply a system of * Kelsen: “the law is simply not pure coordinated norms of equal * came from the collective will, when cluttered with axiological level but a and hierarchy of legal competence, capacity of the norms.” norms of different level.” people * denoteS the basic norm, order, or rule that forms an underlying basis for a legal system

“is-statement” vs.“oughtPurpose statement.” of the Grand Norm - need to find a point of origin for ► “is-statement” -something is, or all law, on which the basic law and something is not done is expressive constitution can gain their of a simple reason for action legitimacy from ► “ought-statement” -something should be, or *something no longer should depends beon done, or the moral law or natural something should not be done law for its validity is expressive of a higher kind of reason for action

Functions of *The acts of the different Normative Legal branches of the government Order are considered as measures 1)Prescriptive of coercion. Sanctions and incentives are attached to a 2)Authoritati legalve norm. This is what distinguishes a legal norm 3)Permissive from other social norms.

Essential Attributes of the Law 1)Conscious formulation

- distinguishes a rule or norm of positive law from a rule or norm of morality 4)Generality - Rules or norms must prescribe courses of conduct for all members of a society or for all members of a class 7)Authoritativeness - makes the law imperative and jussive, or making it not merely hortatory or advisory

Positive Law vs. Conflict with Natural LawHistorical

View * Legal positivism is the view that law is fully *A rule cannot be made before the defined by its existence as man-made law. Function of positive law is to define the facts natural it lawpurports and make itto occurrence of the explicit; to makeorit effective thruIn sanctions. regulate govern. the positivists view, the act has to happen before a * Legal positivists do not believe rule can be made precisely to govern init. natural law in the legal ordering of society because natural law is not common to everybody.

Critique of Legal Positivism

•Lon Fuller •Ronald Dworkin deniesthat thethere separation of law andtheory of - -denies can be any general morality the existence and content of law; he denies that local- whatever theories of particular legal systems can virtues inherent in identify law without to its merits, and he or follow from recourse clear, consistent, rejects the whole institutional focus of positivism prospective, and open practices can be found not only in law but in all other social practices