Positivist Theories Of Law And Morality - 1660 Words

Positivist theories of law can be described as â€Å"those who understand the law to be a particular sort of social ordering, a certain kind of social technology by which individuals who live together can coordinate their behaviour and resolve disputes.† Positivist theories also state that there is no necessary connection between law and morality and rejects the idea of a higher law. Classical legal positivism was first founded by Jeremy Bentham (1748-1832). Bentham’s aim was to provide an alternative to what he saw as ‘errors of the conventional jurisprudence’ of his time. His ideas were later developed by John Austin, who promoted the ‘Command Theory’ of law. HLA Hart was very much in favour of legal positivism; however, he didn’t agree with some of the concepts outlined by Austin. He analysed the classical theories of positivism, particularly those of Austin and Bentham and attempted to update this view of law. His argument for lega l positivism challenged many of the concepts laid out by the classical theorists. This essay will, therefore, examine Hart’s argument, in favour of legal positivism, look at his analysis of other positivists theories as well as criticisms of his own theory, notably that of Dworkin, and come to a conclusion on whether he provides a persuasive argument in favour of positivism. John Austin’s theory on positivism was one of the main theories in which Hart critiqued in his legal positivism argument. Austin promoted the ‘Command Theory’ of law, withinShow MoreRelatedThe Nature Of People s Beliefs1660 Words   |  7 Pageseven the ideas of the law are exempt from this occurrence. Since the spoken word, hundreds of philosophers have defined law in different ways. Seeing law in different ways people can come to different conclusions about specific cases. The Fugitive Slave Law was a controversial law in American history. The Fugitive Slave Law allowed slave-owners to capture their slaves who have fled North to free states. In United States v Morris, the emancipators challenged the Fugitive Slave Law in Boston. A groupRead MoreThe Case Of Brown V. Board Of Education Of Topeka1694 Words   |  7 Pagesjustified in ruling in the manner they did. So, natural law theorists like St. Thomas Aquinas and John Finnis, legal positivists like H. L. A. H art, and philosopher Ronald Dworkin, while having fundamental differences in their beliefs of what law is, how it is determined, and how cases are adjudicated, would still arrive at the fact that the ruling in Brown v. Board of Education was legally justified. Natural law theory is essentially the belief that law is derived from humans’ unique ability to reasonRead MoreEthics And The Separation Of Law And Morals1257 Words   |  6 Pages Law and morality work together to guide our behavior; while law does it by punishing us if we do something wrong, morality does it through incentives. In their articles, both H.L.A Hart in â€Å"Positivism and the Separation of Law and Morals,† and Lon Fuller’s reply to professor Hart in â€Å"Positivism and Fidelity to Law,† discuss the concept of law post world war II Germany and their re-imagining of natural law as put forth by Gustav Radbruch’s theory. In this paper, I hope to show how both law and moralityRead MoreThe Second World War1598 Words   |  7 Pagesthat they weren’t guilty of a crime as they were obeying the law of Nazi Germany . Consequently, the trial revived the broader question of whether laws which are inherently immoral can be considered valid law. Moreover, the trial generated fresh debate within jurisprudence, in turn leading many to criticise the previously prominent ideas of Legal Positivism , which in layman’s ter ms separated law from morality and credited as valid law any bill provided it had gone through the recognised legislativeRead MoreMorality Vs. Morality : Morality And Morality1729 Words   |  7 PagesAlthough law and morality are two separate issues it is evident that morality plays a crucial role in the law. Dr. Jà ¼rgen Habermas stated â€Å"law is internally related†¦ to morality† . The idea of law is not that it must be moral but that it provides a system to allow people to live together peacefully in a society. However, as much as it is debated, it is apparent that in order for human civilisation to work laws must generally be moral. Natural law is a theory that emphasises the role of morality in theRead MorePositivism : The Ruling Theory Of Law944 Words   |  4 Pages(1790-1859) and HLA Hart (1907-1992). Philosopher Ronald Dworkin once described legal positivism as the ruling theory of law. Since the time of Bentham and Austin legal positivism was the dominant theory and was held by most legal scholars in one way or another and was also the working theory of most legal practitioner’s. Although recognized as a dominating jurisprudential theory with considerable influence on the writings of many legal scholars, positivism has been open to much criticism especiallyRead MoreThe Case Of The Speluncean Explorers1740 Words   |  7 Pagesand Keen J adopt a similar positivist position as Lord Coleridge in Dudley and Stephens; that of a definite separation of law and morality. Contrary to modern theorists such as Fuller and Dworkin, positivists hold the opinion that the properties of the law are exclusive of moral bearing and that laws are both made and enforced by men to regulate social, moral and normative interaction between men, thus leaving no place for individual morality in the execution of the law. Judicial supremacy precludesRead MoreEssay on Justice1493 Words   |  6 Pagesachieve it’. Justice is something that we all want from a Law and believe should be an integral part in any legal system. However, the meaning of Justice is very difficult to define. There are many aspects of justice that we may question about; i.e. is a particular law just? Is the legal system just? Much of the issue of justice is very controversial and raises questions such as whether the combination of Law and system produce a just result? Justice has a definitionRead MoreLegal Positivism : A Positivist Legal System1401 Words   |  6 Pagesis propounded by a Positivist Legal System. The aim of this essay is to evaluate a positivist legal system or legal positivism, by analysing what it means, what it does the positive and negative aspects of legal positivism, how legal positivism works in a society. In order to understand a positivist legal system and how it works in a society, this essay is going to concentrate on some aspects of legal positivism, which are; the definition of legal positivism or positivist legal system, ideologiesRead MoreThe Distinction Between Natural Law And Legal Positivism Essay1747 Words   |  7 Pagesdefine the distinction between natural law and legal positivism. I will make distinctions regarding advantages and disadvantages of the definitions of the theories of natural law and legal positivism. By focussing on slavery as an example I will be looking at various theorists and their theories thereby attempting to make sense and find clarity in this regard. Furthermore to understand the aspects of natural law and legal positivism, one has to understand the theories of Cicero, Thomas Aquinas among others