It was in a bid to prevent this Hobbesian state of nature that many individuals as well as societies and cultures have devoted so much effort in propounding plausible legal systems for humanity. However it becomes disappointing that the energy and time devoted on this issue results in conflicting legal theories. Some penitent and indispensable questions readily then come to mind; can man not have a universal law, having one basic principle even though with different cultural applications and interpretations?
Comtean positivism was more overtly religious than any school of natural law theory. Legal positivism has also been confused with the ancient idea of positive law. Hartand Joseph Raz Nor is it the case that twentieth-century legal positivism directly stems from traditional theories of positive law: The leading legal positivists of our day, such as Hart and Raz, almost never speak of positive law while a major theorist of positive law today, John Finnis, is no legal positivist.
Still, we distinguish in order to unite, and there is an important relation between traditional theories of positive law and modern versions of legal positivism. The theory of positive law cannot be understood except by contrast with two other kinds of law.
In contrast to natural law, however, positive law is defined variously as morally indifferent, morally arbitrary, or morally adventitious.
So in one sense, to claim that law is positive is to make a descriptive claim about its source: Yet in another sense, to claim that law is positive is to make a normative claim about its content: It is often difficult to distinguish properties that often co-exist: So it is understandable, then, to associate what is positive in content with what is positive in source.
Nonetheless, our two senses of positive law are logically independent, even if they are often found together. Natural-law norms can be deliberately imposed by sovereign authority, as in parts of the Decalogue, the American Bill of Rights, and the West German Federal Constitution.
Although these norms have intrinsic and universal moral force quite apart from these historical enactments, the fact that they were solemnly adopted by legislative authority provides citizens of those polities additional moral reasons for respecting them.
These laws, then, are natural in content but positive in source.
Conversely, many of the rules of customary or common law lack intrinsic moral force: The two most distinctive theses of contemporary legal positivism both stem from the traditional accounts of the two senses of positive law: In contrast to custom, positive law is imposed by deliberate imposition.
Obviously, the claim that law has its source in deliberate sovereign imposition applies better to some kinds of law than to other kinds: When Hobbes argues that all civil law is positive, he means that all civil law is imposed by the sovereign. What about customary or common law? John Austin similarly argued that common law reflects a kind of indirect legislation: Later legal positivists, however, have become embarrassed by these crudely Procrustean methods of forcing all kinds of law into a legislative mold.
Hart effectively refuted the argument that whatever the sovereign permits, he commands. Nonetheless, Hart also attempted an explanatory reductionism of law by tracing all legal norms to a unique rule of recognition whereby the whole legal system, from the orders of a police officer to the statutes of Parliament, forms a top-down chain of command.
So the claim that all law is somehow posited by deliberate acts of legal officials continues to fail to make sense of the role of custom as a largely independent source of law. In contrast to natural law, positive law is morally arbitrary or indifferent.
Some exclusive legal positivists argue that legal validity necessarily excludes appeals to moral truth while other inclusive positivists argue that some legal systems in particular, the American permit appeals to moral truth in the finding of law Waluchow: Lon Fuller argued against the legal positivists that law necessarily embodies some procedural principles that are moral in content: Ronald Dworkin argued against the legal positivists by asserting that law includes general principles that can be indentified and deployed only by means of moral argument by judges.
Critics say that what many legal positivists fail to note is that there are several sound natural-law reasons for the positivity of law. To coordinate complex human activities, law must descend into concrete particularity: So natural law shows us why it is morally necessary for law to be largely morally indifferent in content.
Similarly, many legal positivists, such as Raz, argue that we must be able to identify legal norms without recourse to moral argument, because the point of a legal system is to provide a framework for social interaction in contexts precisely where there is no agreement about moral principles.
Here again, we can see that there are good moral reasons for insisting on objective criteria for identifying valid legal norms, if we hope to sustain a legal order that can be respected by citizens of widely divergent moral views.A Comparative Analysis of John Austin’s Legal Positivism with Igbo Legal System.
ABSTRACT. Hart classifies the problems of philosophy of law into three broad headings, namely: problems of definition, problems of legal reasoning, and problems of criticism of law”.
The Autonomy of Law: Essays on Legal Positivism [Robert P. George] on plombier-nemours.com *FREE* shipping on qualifying offers. This collection of original papers from distinguished legal theorists offers a challenging assessment of the nature and viability of legal positivism.
H.L.A. Hart, in full Herbert Lionel Adolphus Hart, (born July 18, , Harrogate, Yorkshire, England—died December 19, , Oxford, Oxfordshire), English philosopher, teacher, and author who was the foremost legal philosopher and one of the leading political philosophers of the 20th century.
Anthony J. Sebok's Legal Positivism in American Jurisprudence PDF. This ebook is either a piece of highbrow heritage and a contribution to criminal philosophy.
was a grand version of efficiency at the whole-society level. In the twentieth century, efficiency in the law is more commonly a con-cern at the intermediate level between specific actions or choices.
A concise guide to technical terms and personal names often encountered in the study of philosophy, with links to sources of additional information.