Which of the following Types of Jurisprudence Are Types of Legal Positivism

It is a question of the content of all legal systems. Where there is law, there is morality, and they regulate the same things by analogous techniques. Of course, to say that law deals with the subject of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean to approve of the duties thus created. This term differs from Hart`s thesis of “minimal content,” according to which there are basic rules of violence, property, fidelity and kinship that any legal system must encompass if it is aimed at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and is willing to relativize his support for the separability thesis to this extent. But even a society that prefers national glory or the worship of gods to survival will impose on its legal system the same tasks as its morality. Unlike the rules of a gym, the law is broad in scope and achieves the most important things in any society. Indeed, our most pressing political concerns about the law and its demands stem from this very ability to regulate our most vital interests, and the broad scope of the law must play a role in any dispute about its legitimacy. (A clear argument, most developed by Raz (1994) and Gardner (2012a), is that the law not only deals with moral issues, but also makes moral claims about us.

For criticism, see. Kramer, 1999: 83-9; Duarte d`Almeida and Edwards, 2014.) Yet Fuller`s principles function internally, not as moral ideals, but simply as principles of efficiency. As Fuller would probably acknowledge, the existence of a legal system is compatible with a significant departure from the principles of legality. Legal norms, for example, are necessarily proclaimed in general terms, which inevitably leads to problems of indeterminacy. And too often, officials do not administer the law fairly and impartially – even in the best jurisdictions. Such deviations may still be prima facie reprehensible, but they are incompatible with a legal system only if they render a legal system incapable of fulfilling its essential function of guiding conduct. To the extent that these principles are embedded in the conditions of existence of the law, it is because they act as conditions of effectiveness – not because they function as moral ideals. The most important precursor of legal positivism is empiricism, whose thinkers can be traced back to Sextus Empiricus, Thomas Hobbes, John Locke, George Berkeley, David Hume and Auguste Comte.

The main idea of empiricism is the assertion that all knowledge of facts must be validated by sensory experience or derived from sentences clearly derived from sensory data. Moreover, empiricism is opposed to metaphysics; For example, Hume dismissed metaphysics as mere speculation beyond what can be learned from sensory experience. [6] The teachings of empiricists preceded the systematization of a positivist method for problems of understanding and analysis, which was later advocated by legal positivism. [7] The positivist presentation of legal validity is difficult to reconcile with [the assertion] that valid law as such, whatever its content, deserves our general respect and loyalty. Even if a valid law is a bad law, we have a certain obligation to obey it simply because it is the law. But how is this possible if the validity of a law has nothing to do with its content? Despite its resemblance to this earlier critique, Dworkin`s semantic argument serves a deeper purpose. The semantic spur refers to all so-called semantic legal theories, which define the concept of law in the sense of “common rules”. established the criteria that give meaning to the word” (Dworkin 1986, p. 31).

Thus, while the preceding critique is directed against Hart`s alien presentation of social rules, the semantic spur is directed against what Dworkin sees as the core of the theoretical core of positivism, namely the assertion that there are common criteria that exhaust the conditions for the correct application of the concept of law. Legal positivism is a philosophy of law that emphasizes the conventional nature of law – that it is socially constructed. According to legal positivism, the law is synonymous with positive norms, that is, norms established by Parliament or considered common law or jurisprudence. Formal criteria of origin of the law, application of the law and legal validity are sufficient to consider social norms as law. Legal positivism does not base law on divine commandments, reason, or human rights. As a historical issue, positivism arose in opposition to the classical theory of natural law, according to which there are moral limits necessary to the content of law. All areas of law, particularly the major areas of common law, property, tort, crime and contract, bear the stamp of economic reasoning. It is not a rebuttal that only a few legal opinions contain explicit references to economic terms.

Often, the true reasons for the decision are obscured rather than informed by the rhetoric characteristic of judicial opinions. In fact, legal education is primarily about learning to dig beneath the rhetorical surface to find these reasons, many of which may turn out to be economic (Posner 1992, 23). According to Dworkin, the thesis of the discretion of positivism is engaged in the third sense of discretion, which he calls strong discretion. According to Dworkin, the thesis that judges have discretion only in the sense that they exercise judgment is trivially true, while the thesis that judges have discretion in the sense that their decisions cannot be overturned by a superior court is false. Even the Supreme Court can be struck down by Congress or by a constitutional amendment. According to Dworkin, the discretionary thesis implies that judges have the discretion to decide difficult cases, which amounts to a legal act because the judge is not bound by any legal norm. According to Dworkin, the legal authority of a binding principle derives from the contribution it makes to the best moral justification for the legal practice of a society as a whole. According to Dworkin, a legal principle contributes to no more such justification unless it meets two conditions: (1) the principle is consistent with existing legal documents; and (2) the principle is the most morally appealing standard that (1) satisfies. The correct legal principle is one that makes the law morally the best it can be. Thus, Dworkin concludes: “If we treat principles as laws, we must reject the first principle of positivists, namely that the law of a community is distinguished from other social norms by a test in the form of a master rule” (Dworkin 1977, 44). Jules Coleman replies that if the rule of recognition is a social rule, Hart`s view implies that there must be general agreement among the officials of a legal system on the norms that constitute the rule of recognition, but this does not mean that there cannot be disagreement on what these norms require in a particular case: Legal positivism has a long history and wide influence.

It has precursors in ancient political philosophy and is discussed in medieval legal and political thought, and the term itself is introduced (see Finnis 1996). Modern teaching, however, owes little to these ancestors. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first complete elaboration is due to Jeremy Bentham (1748-1832), whose narrative Austin adopted, modified and popularized. For much of the next century, an amalgam of their views, according to which law is the imperative of a ruler supported by force, dominated philosophical reflection on law. By the mid-twentieth century, however, this narrative had lost its influence among active legal philosophers. His focus on legislative institutions has been replaced by a focus on law enforcement institutions such as the courts, and his emphasis on the role of coercive power has given way to theories emphasizing the systematic and normative nature of law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominant figures of analytic legal philosophy, H.L.A. Hart (1907-92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. However, the importance of legal positivism is not limited to the philosophy of law. This can be seen throughout social theory, especially in the works of Marx, Weber and Durkheim, and also in many jurists, including American “legal realists” and most contemporary feminist academics. Although they disagree on many other points, these authors all recognize that the law is essentially a matter of social fact. Some of them are uncomfortable with the label of “legal positivism” and therefore hope to escape it.

Their discomfort is sometimes the product of confusion.