Theory of legal pozitivism ” Legal positivism

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Fənn: Theory of law
İxtisas: Hüquqşunaslıq ( ingilis dili üzrə)
Qrup: İngilis 13
Tələbə: Bədəlova Aytəkin
Mövzu: Theory of legal pozitivism.

Bakı – 2022

Theory of legal pozitivism ”
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:

  • laws are commands of human beings;

  • there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be;

  • analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions;

  • a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations (legal formalism);

  • moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics).[1]

Historically, legal positivism is in opposition to natural law's theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality. The term positivism is derived from Latin ponere, positum, meaning "to put". "Positive law" is that which is man-made, i.e., defined formally. In the positivist opinion, the source of a law is the establishment of that law by some legal authority which is recognised socially. The merits of a law are a separate issue: it may be a 'bad law' by some standard, but if it was added to the system by a legitimate authority, it is still a law.The Stanford Encyclopedia of Philosophy summarises the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction."Legal positivism does not claim that the laws so identified should be obeyed, or that necessarily there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate; as a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid does not provide any guidance as to whether the court should apply it in a particular case.
As John Gardner has said, legal positivism is "normatively inert"; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions for separate investigation. The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. Traditionally, positivist theories of law have been developed by theorists applying the method of conceptual analysis to determine what is 'natural to say'. This approach assumes that legal concepts, being ‘settled by the classificatory machinery of human thought’, are ‘amenable only to philosophical… reflection’.[8] Recently, researchers in the emerging field of experimental jurisprudence have challenged this assumption by exploring the relation between law and morality through systematic, psychological investigations of folk legal concepts.Legal positivism is related to empiricist and logical positivist theoretical traditions. Its methods include descriptive investigations of particular legal orders. Peter Curzon wrote that this approach "utilizes in its investigations the inductive method" which proceeds "from observation of particular facts to generalizations concerning all such facts." These investigations eschew assessments of ethics, social welfare, and morality. As Julius Stone wrote, legal positivist investigation is concerned primarily with "an analysis of legal terms, and an inquiry into the logical interrelations of legal propositions."[citation needed] Further, law and its authority are framed as source-based: the validity of a legal norm depends not on its moral value, but on the sources determined by a social community's rules and conventions. This source-based conception aligns with the logical positivism of Rudolf Carnap, who rejected metaphysical conjecture about the nature of reality beyond observable events. Thomas Hobbes, in his seminal work Leviathan, postulated the first detailed notion of law based on the notion of sovereign power. As Hampton writes, "law is understood [by Hobbes] to depend on the sovereign's will. No matter what a law's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law." There is, however, debate surrounding Hobbes's status as a legal positivist. Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed.
According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society.The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality. Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something. Legal positivism is a school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies. The basic question to be asked when talking about this theory is “What is law?” Is it written? Where does it come from? Legal positivism is a theory which answers these questions.Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. Thus, no laws can be regarded as expressions of higher morality or higher principles to which people can appeal when they disagree with the laws. It is a view that law is a social construction. The creation of laws is simply an exercise in brute force and an expression of power, not an attempt to realize any loftier moral or social goals. Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such”.
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