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Encyclopedia > Legal positivism

Legal positivism is a school of thought in jurisprudence and the philosophy of law. The principal claims of legal positivism are that: Jurisprudence is the theory and philosophy of law. ... Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as what is the law?, what are the criteria for legal validity?, what is the relationship between law and morality?, and many other similar questions. ...

  • laws are rules made, whether deliberately or unintentionally, by human beings;
  • there is no inherent or necessary connection between the validity conditions of law and ethics or morality.

Contents

Ethics (from the Ancient Greek ethikos, meaning arising from habit; also Morality), a major branch of philosophy, is the study of value, or morals and morality. ... It has been suggested that Moral reflex be merged into this article or section. ...

Legal Positivism and Natural Law

Legal positivism stands in opposition to various contrary ideas in the tradition of natural law, a body of legal theory asserting that there is an essential connection between law and justice. Many legal positivists endorse the separation thesis: the idea that legal validity has no essential connection with morality or justice. Natural law (Latin jus naturale) is law that exists independently of the positive law of a given political order, society or nation-state. ...


Legal positivism in the English speaking world

In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the philosopher of utilitarianism, who in turn borrowed concepts from Thomas Hobbes. Bentham drew a sharp distinction between people he called "expositors," whose task it was to explain what the law in practice was; and "censors," those who criticised the law in practice and compared it to their notions of what it ought to be. The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather than the criticisms of the censors. Jeremy Bentham (IPA: or ) (February 15, 1748 O.S. (February 26, 1749 N.S.) – June 6, 1832) was an English jurist, philosopher, and legal and social reformer. ... Utilitarianism (from the Latin utilis, useful) is the ethical doctrine that the moral worth of an action is solely determined by its contribution to overall utility. ... Hobbes redirects here. ...


The legal philosopher John Austin, attempting to put the system in a nutshell, held that the distinguishing feature of a legal system is the existence of a sovereign whose authority is recognised by most members of a society, but who is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents. Of course, in the Republic of the United States, the citizens have granted through the Constitution authority and power to the government to determine and enforce the laws. Austin would agree that there is nothing in legal positivism that forbids a hierarchy of laws from existing, or that the power be vested always in a single person or group. John Austin (1790 - 1859) was a jurist, served in the army in Sicily and Malta, but, selling his commission, studied law, and was called to the Bar 1818. ... Look up monarch in Wiktionary, the free dictionary. ...


In another sense, according to the distinguished American judge Oliver Wendell Holmes, legal positivism is in a sense the science of those who observe and give counsel as to what governments might do. According to Holmes, law is not so much a body of rules and procedures as it is a body of knowledge that predicts what courts are likely to do. Holmes's is a more lawyerly sort of legal realism; it acknowledges that the rules printed in statute books and precedents can be swayed by effectively marshalled cases and legal argument. A prediction of how the judge will act, though, can at best be stated in terms of probability. A judge or justice is an official who presides over a court. ... Oliver Wendell Holmes, Jr. ... Part of a scientific laboratory at the University of Cologne. ... Look up Procedure in Wiktionary, the free dictionary. ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... English barrister 16th century painting of a civil law notary, by Flemish painter Quentin Massys. ... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ... In law, a precedent or authority is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts. ... Probability is the extent to which something is likely to happen or be the case[1]. Probability theory is used extensively in areas such as statistics, mathematics, science, philosophy to draw conclusions about the likelihood of potential events and the underlying mechanics of complex systems. ...


Insofar as positive laws are, as John Austin writes, commands of a sovereign, or, as Holmes argues, decisions of a court, they might appear as arbitrary. Similarly, Niklas Luhmann argues that the essence of positive law is that it is a decision. “We can reduce this concept of positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable).” (Luhmann, 1987) Positive law, therefore, is changeable law. For example, abortion can be illegal yesterday, legal today, and illegal tomorrow. The malleability of law has, of course, great advantages. Law can be adapted to pressing needs. Especially in the fast-paced world of business, the adaptability of modern law enables it to be a powerful instrument for the willful promotion and regulation of social and economic relations. There have been several notable people named John Austin: A philosopher of language; see J. L. Austin (1911 - 1960) An 18th century legal and political theorist who wrote An Essay on Sovereignty, considered the standard for discussions about sovereignty; see John Austin (legal philosophy) A warrant officer in the United... Holmes may refer to the following: // Slang Term Holmes is often used as a word for buddy. ... Niklas Luhmann (December 8, 1927 - November 6, 1999) was a German sociologist, administration expert, and social systems theorist, as well as the founder of the sociological systems theory. ...


It is a common mistake, therefore, to think that positive laws, as willful and changeable, are therefore arbitrary. Precisely because positive laws are willful, positive laws are those laws that must justify themselves with reason. Positive laws are precisely those laws most in need of reasons and justifications. It is for this reason that the rise of positive laws is accompanied by the rise of legal science as a means of offering reasons and justifications for laws. It is no surprise, therefore, that law, today, is infused with the language and practice of the social sciences, from law and economics to the sociology of law and other normative socio-legal studies. Legal Science is one of the social sciences which deals with the institutions and principles that particualar societies have developed: - for defining the claims and liabilities of a person against one another in various circumstances, and - for peacefully resolving disputes and controversies in accordance with principles accepted as fair and... Law and economics, or economic analysis of law, is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics. ... An approach to law stressing the actual social effects of legal institutions, doctrines, and practices and vice versa. ...


Law and ethics

Legal positivism also implies that law is something that can be separated from ethics. On this view it is possible that there are legal rules that have no ethical component, and laws that are positively evil, such as the laws of slavery and segregation. Ethics (from the Ancient Greek ethikos, meaning arising from habit; also Morality), a major branch of philosophy, is the study of value, or morals and morality. ... A law or legal rule without ethical content is irrelevant to morality (see also ethics) or to an ethical behavior or life. ...


Some natural lawyers argue that even the most pedestrian of laws carry the moral or ethical requirement that, as Samuel Adams said, the State of Nature may be abridged only for the basic maintenance of the greater society. Such order is a moral imperative. Thus, a law requiring driving on the right side of the road indeed has a philosophically moral basis. Not that right is socially preferable to left. But, that right is socially preferable to nothing.


Of course, not all legal decisions are as free of ethical content as this one is. Legal positivism is not synonymous with ethical positivism, or for that matter with moral relativism. It is at least a possible viewpoint that there exists a natural ethical code while maintaining that its translation into law remains local and contingent. The argument of legal positivism is not that ethics is irrelevant to every law; rather, that law and ethics are two different things, two fields that occasionally overlap but whose underlying logic remains separate. The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon. In philosophy, moral relativism takes the position that moral or ethical propositions do not reflect absolute and universal moral truths, but instead make claims relative to social, cultural, historical or personal circumstances. ... Everyday instance of theft: the bike which fits on this wheel has disappeared. ...


Against this view, Lon L. Fuller argues that law has its own internal morality; for example, laws must be promulgated, announced to the public; (relatively) intelligible; and not baldly self-contradictory. Unless laws fulfill these requirements, they cannot fulfill their role in the social order, for without fulfilling these requirements, it would be impossible for anyone to know the laws or obey them. According to Fuller, these requirements are ethical requirements, and they constrain law even without regard to any rules of ethics exterior to the legal process. Lon Louvois Fuller (1902-1978) is a noted legal douche-bag philosopher, who wrote The Morality of Law in 1964, discussing the connection between law and morality. ... Promulgation is the act of formally proclaiming new legislation to the public. ...


The tradition of natural law thinking that asserts that natural justice is elaborated through the dispute-resolving function of the courts and the extension of precedent by analogy through the common-law process is not helped by Fuller's argument. As A. P. Herbert observed, "there is no precedent for anything until it is done the first time." Sooner or later, judges will have to make new rules to resolve new disputes, and these new rules are not known to the general public until the moment they are announced. This article or section is in need of attention from an expert on the subject. ... In law, a precedent or authority is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts. ... Analogy is either the cognitive process of transferring or giving information from a particular subject (the analogue or source) to another particular subject (the target), or a linguistic expression corresponding to such a process. ... Sir Alan Patrick Herbert (September 24, 1890 - November 11, 1971) was a British humorist, Member of Parliament, barrister, and novelist. ...


Ronald Dworkin distinguishes between principles and rules. Rules are like the law that tells you which side of the street to drive on. They are essentially binary in application; they either govern a case or they don't. Principles are substantially more vague statements of policy and ethical norms, brocards, and similar maxims. From the perspective of the common law tradition, the difference between rules and principles is roughly analogous to the difference between law and equity. Riggs v Palmer is a classic case which Dworkin often cites in which principle trumped law. The case held that a murderer cannot inherit his victim's property, despite the fact that the victim's will said unambiguously that the murderer was the heir, and the statute of wills said the will was valid and should be carried out. Ronald Dworkin (born 1931) is an American legal philosopher, and currently professor of Jurisprudence at University College London and the New York University School of Law. ... A Brocard is a juridical principle usually expressed in Latin (and often derived from juridical works of the past), traditionally used to concisely express a wider legal concept or rule. ... This article needs cleanup. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... The Court of Chancery, London, early 19th century This article is about concept of equity in Anglo-American jurisprudence. ... Property designates those things that are commonly recognized as being the possessions of a person or group. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... For other uses, see inheritance (disambiguation). ...


Robert Alexy argues that every legal rule is ethically relevant, since it affects freedom, which, according to Alexy, is of obvious ethical significance. Robert Alexy (born September 9, 1945 in Oldenburg, Germany) is a jurist and a philosopher. ...

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Image File history File links Scale_of_justice. ... Equality and the balancing of our interests under law is symbolised by a blindfold and weighing scales For other senses of this word, see Law (disambiguation). ... A contract is a legally binding exchange of promises or agreement between parties. ... Tort is a legal term that means civil wrong, as opposed to a criminal wrong. ... The Law of Obligations is one of the component elements of the civil law system of law and encompasses contractual obligations, quasi-contractual obligations such as unjust enrichment and extra-contractual obligations. ... Property designates those things that are commonly recognized as being the possessions of a person or group. ... The term trust has several meanings: In sociology, trust is willing acceptance of one persons power to affect another. ... Constitutional law is the study of foundational laws that govern the scope of powers and authority of various bodies in relation to the creation and execution of other laws by a government. ... Administrative law (or regulatory law) is the body of law that arises from the activities of administrative agencies of government. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... International law deals with the relationships between states, or between persons or entities in different states. ... Conflict of laws, or private international law, or international private law is that branch of international law and interstate law that regulates all lawsuits involving a foreign law element, where a difference in result will occur depending on which laws are applied as the lex causae. ... The European Union is unique among international organisations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states. ... Equality and the balancing of our interests under law is symbolised by a blindfold and weighing scales For other senses of this word, see Law (disambiguation). ... This article is in need of attention. ... Human rights law is a system of laws, both domestic and international which is intended to promote human rights. ... Legal procedure is the body of law and rules used in the administration of justice in the court system, including such areas as civil procedure, criminal procedure, appellate procedure, administrative procedure, labour procedure, and probate. ... The law of evidence governs the use of testimony (e. ... Nationality law is the branch of a countrys legal system wherein legislation, custom and court precendent combine to define the ways in which that countrys nationality and citizenship are transmitted, acquired or lost. ... Social security primarily refers to a field of social welfare concerned with social protection, or protection against socially recognized conditions, including poverty, old age, disability, unemployment, families with children and others. ... Family Law was a television drama starring Kathleen Quinlan as a divorced lawyer who attempted to start her own law firm after her lawyer husband took all their old clients. ... Commercial law or business law is the body of law which governs business and commerce and is often considered to be a branch of civil law and deals both with issues of private law and public law. ... Corporations law or corporate law is the law concerning the creation and regulation of corporations. ... In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. ... The following analysis is based on English law. ... Restitution is the name given to a form of legal relief in which the plaintiff recovers something from the defendant that belongs, or should belong, to the plaintiff. ... Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes. ... The examples and perspective in this article or section may not represent a worldwide view. ... It has been suggested that this article or section be merged with antitrust. ... Consumer protection is a form of government regulation which protects the interests of consumers. ... Environmental law is a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seeks to protect the natural environment which may be affected, impacted or endangered by human activities. ... Public services is a term usually used to mean services provided by government to its citizens, either directly (through the public sector) or by financing private provision of services. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Civil law or continental law is the predominant system of law in the world, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, that are applied and interpreted by judges. ... In the religious sense, law can be thought of as the ordering principle of reality; knowledge as revealed by God defining and governing all human affairs. ... Socialist law is the official name of the legal system used in Communist states. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... This article is about law in society. ... ... In Egyptian mythology, Maàt was the goddess of truth, justice and order as well as a word referring to those concepts she represents. ... The material for the study of Babylonian law is singularly extensive. ... Roman law is the legal system of ancient Rome. ... The Arthashastra (more precisely Arthaśāstra) is a treatise on statecraft and economic policy which identifies its author by the names Kautilya[1] and Viṣṇugupta,[2] who are traditionally identified with the Mauryan minister Cāṇakya. ... Magna Carta Magna Carta (Latin for Great Charter, literally Great Paper), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English charter originally issued in 1215. ... This article needs cleanup. ... Jurisprudence is the theory and philosophy of law. ... Natural law (Latin jus naturale) is law that exists independently of the positive law of a given political order, society or nation-state. ... Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ... Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ... The study of feminist legal theory is a school thought based on the common view that laws treatment of women in relation to men has not been equal nor fair. ... The Politics series Politics Portal This box:      Political philosophy is the study of fundamental questions about the state, government, politics, liberty, justice, property, rights, law and the enforcement of a legal code by authority: what they are, why (or even if) they are needed, what makes a government legitimate, what... Law and economics, or economic analysis of law, is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics. ... New institutional economics (NIE) may be characterized as a new perspective in economics. ... Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. ... Equality and the balancing of our interests under law is symbolised by a blindfold and weighing scales For other senses of this word, see Law (disambiguation). ... The Politics series Politics Portal This box:      In law, the judiciary or judicial is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. ... A legislature is a type of representative deliberative assembly with the power to adopt laws. ... This page is about the sociological concept. ... The Politics series Politics Portal This box:      Civil society is composed of the totality of voluntary civic and social organizations and institutions that form the basis of a functioning society as opposed to the force-backed structures of a state (regardless of that states political system) and commercial institutions. ... A lawyer is a person licensed by the state to advise clients in legal matters and represent them in courts of law and in other forms of dispute resolution. ...

See also

The Constitution in Exile is a controversial term that refers to provisions of the United States Constitution whose interpretation by the Supreme Court have changed since roughly the 1930s, and which have not been strictly enforced, such as the interstate commerce clause. ... Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. ... Georg Jellinek Georg Jellinek (June 16, 1851, Leipzig–January 12, 1911, Heidelberg) was a German legal philosopher. ... Leslie Green is a leading analytical philosopher of law and jurisprudence. ... H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) is considered one of the most important legal philosophers of the twentieth century. ... Hans Kelsen Hans Kelsen (Prague, October 11, 1881 – April 19, 1973) was an Austrian -American jurist of Jewish descent. ... Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. ... Judicial activism is the tendency of some judges to take a flexible view of their power of judicial interpretation, especially when such judges import subjective reasoning that displaces objective evaluation of applicable law. ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ... Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ... Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context. ... Libertarian theories of law build on libertarianism or classical liberalism. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Natural law (Latin jus naturale) is law that exists independently of the positive law of a given political order, society or nation-state. ... Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as what is the law?, what are the criteria for legal validity?, what is the relationship between law and morality?, and many other similar questions. ... Ronald Dworkin (born 1931) is an American legal philosopher, and currently professor of Jurisprudence at University College London and the New York University School of Law. ... Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. ...

External links

Articles

  • Daniel Z. Epstein "Law's 'I'" 2007.

  Results from FactBites:
 
Legal positivism - Wikipedia, the free encyclopedia (1073 words)
Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law.
Legal positivism stands in opposition to various contrary ideas in the tradition of natural law, a body of legal theory asserting that there is an essential connection between law and morality.
The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon.
Positivism - Wikipedia, the free encyclopedia (297 words)
Legal positivism is a view which, in contrast to the natural law view, claims that a legal system can be defined independently of evaluative terms or propositions.
Sometimes legal positivism is understood as the view that laws must be obeyed, whatever their content.
More broadly, Positivism was a major social ideology of Poland in that period and helped stimulate a growing interest in science, technology and economic development.
  More results at FactBites »

 
 

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