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Introduction to Legal Positivism

Introduction to Legal Positivism

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Published by Ernesto dos Santos

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Published by: Ernesto dos Santos on Mar 19, 2009
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01/31/2013

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I. Introduction to Legal PositivismA. Definition
Positivism is from the Latin root
 positus
, which means to posit, postulate, or firmly affixthe existence of something.
1
 Legal positivism is a school of  jurisprudencewhose advocates  believe that the only legitimate sources of law are those written rules, regulations, and principlesthat have been expressly enacted, adopted, or recognized by a governmental entity or politicalinstitution, including administrative, executive, legislative, and judicial bodies.
2
The basicquestion to be asked when talking about this theory is “What is law?”
3
Is it written? Where doesit 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 nothingmore and nothing less than simply the expression of the will of whatever authority created them.
4 
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.
5
The creation of laws is simply an exercise in brute force and an expression of power, not anattempt to realize any loftier moral or social goals.
6
Therefore, from a positivist perspective, itcan be said that “legal rulesor laws arevalid not because they are rooted inmoralor natural law,  but because they are enacted bylegitimate authorityand are accepted by the society as such”.
7
B. History of Legal Positivism and its Proponents
Legal positivism has ancient roots. Christians believe that the Ten Commandments havesacred and pre-eminent value in part because they were inscribed in stone by God, and deliveredto Moses on Mount Sinai. When the ancient Greeks intended for a new law to have permanentvalidity, they inscribed it on stone or wood and displayed it in a public place for all to see. Inclassical Rome, Emperor Justinian (483-565 A.D.) developed an elaborate system of law that wascontained in a detailed and voluminous written code.
8
1
thefreedictionary.com Official Website
2
Ibid.
3
Ibid.
4
Atheism.About Official Website
5
Stanford Encyclopedia of Philosophy Official Website
6
Atheism.About Official Website
7
Business Dictionary Official Website
8
Legal Positivism - Further Readings at Law.Jrank.Org Official Website
1
 
Prior to the American Revolution, English political thinkersJohn AustinandThomas  Hobbesarticulated the command theory of law, which stood for the proposition that the onlylegal authorities that courts should recognize are the commands of the sovereign, because onlythe sovereign is entrusted with the power to enforce its commands with military and policeforce.
9
 Thomas Hobbes argued that “it is improbable for any statute to be unjust”.
Accordingto him, “before the names of just and unjust can take place, there must be some coercive power to compel men equally to the performance of their covenants … and such power there is none before the creation of the commonwealth”.
In this, he meant that “laws are the rules of just andunjust, nothing being reputed unjust that is not contrary to some law. For Hobbes, the sovereignis not subject to laws for having the power to make and repeal laws for having the power to makeand repeal laws; he may, when he pleases, free himself from their subjection.”
What hestressed is that “to the care of the sovereign belongs the making of good laws.”
Furthermore, heconcludes that “all that is done by such power is warranted and owned by every one of the people, and that which every man will have so, no man can say is unjust.”
 John Austin on the other hand, adopted some ideas of Thomas Hobbes in his legal philosophy about the nature of law.
Additionally, he was known individually for his “dogma”of legal positivism which states that
:
The existence of law is one thing; its merit or demerit is another. Whether it be or be notis one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.A law, which actually exists, is a law, though we happen to dislike it, or though it vary from thetext, by which we regulate our approbation and disapprobation.
9
Ibid.
10
Pascual, Crisolito. “Introdution to Legal Philosophy”. page 171
11
Ibid.
12
Ibid.
13
Pascual, Crisolito. “Introdution to Legal Philosophy”. page 172
14
Ibid.
15
Ibid.
16
Stanford Encyclopedia of Philosophy Official Website
2
 
Austin defined law by saying that it is the “command of the sovereign”. He expounds on thisfurther by identifying the elements of the definition and distinguishing law from other conceptsthat are similar 
:
“Commands” involve an expressed wish that something be done, and “an evil” to be imposedif that wish is not complied with.
Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
Positive law consists of those commands laid down by a sovereign (or its agents), to becontrasted to other law-givers, like God's general commands, and the general commands of anemployer to an employee.
The “sovereign” is defined as a person (or determinate body of persons) who receives habitualobedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.
Positive law should also be contrasted with “laws by a close analogy(which includes positive morality, laws of honor, international law, customary law, and constitutional law) and“laws by remote analogy” (e.g., the laws of physics).
Another famous advocate of legal positivism in America’s history is probably JusticeOliver Wendell Holmes, Jr. He wrote that the "prophecies of what the courts will do in fact, andnothing more pretentious, are what I mean by the law".
Holmes made a description of what positive law is in the realm of the courts. In making this statement, Holmes was suggesting thatthe meaning of any written law is determined by the individual judges interpreting them, anduntil a judge has weighed in on a legal issue, the law is ultimately little more than an exercise intrying to guess the way a judge will rule in a case.
II. Approaches to Legal Positivism
According to John Austin,
“the existence of the law is one thing its merit or demerit isanother. Whether it be or be not is one enquiry; whether it be or be not conformable to an
17
Ibid.
18
Legal Positivism - Further Readings at Law.Jrank.Org Official Website
19
Ibid.
3

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