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The Evolution of Legal Positivism History about ideas and theories of law have evolved WHAT has evolved

ed Legal Positivism typically shown as more modern BUT remnants of Natural Law have NOT gone away modern forms that continue to contest the MOST basic qs of jurisprudence What is law?

Why Positivism emerged Natural Law rely on speculations on nature OR on how one reasons about nature OR how to present reasons as foundation as understanding of what law is Modern Natural Lawyer Finnis practical reason precondition ANY reasonable understanding of what law is Fuller Morality of aspiration something that operates to limit what can usefully be called law purposeful as far as legal regulation is concerned MEANT to have natural existence to appreciate using reason to understand parameters of how human law operates Law legitimacy Duty to obey understanding through REASON CLASSIC Aquinas defines law as something that is part of rational order of things REASON law is part of this concerns are the common good which obliges in conscience LINKED to idea that have duty to obey legal rules Jurisprudential idea LINKED to broad philosophizing of natural law- to specific qs about how one understands HUMAN laws link focused in jurisprudence Legal Positivism Broad philosophical tradition developed CLOSELY allied to developments following Renaissance modern science and its methods HOW to know what exists with science DIFFERENT way of knowing IF link modern ideas with science notion that by scientific method cause and effect empirical observation of reality relying on what can actually see have antidote of speculations and broad reasoning that was so characteristic of natural law NOW have ways of understanding physical world THEN other parts of worlds political, social, and legal worlds DO SO in positivistic way Legal Positivism is a particular example of positivism a broad understanding of the modern world Positivism START what is posited to set down WHAT is actually being laid down what laws actually exist RATHER than start with nature START examination with WHAT has been set down HOW do you know what is set down what is ACTUAL existence of law what is conceptual existence empirical existence

o THIS is done by WHO sets down laws that we have finding out what has been posited and going on from there to ask the qs who is involved with RPACTICAL exercise of doing and applying Human Law J. Austin Human law is nothing more than what has been laid down/set down by human beings START with humans they do positing THEN analyze what it is they set down humanely created as laws and whose involved with general tasks of applying the laws o DO NO START with nature/reason o START with human beings and what is actually there NO need to have connections to have process - to understand what law is

Basic tenets of ALL positivist legal theories SEEM to have commonalities DIFFERENCES are vivid As distinguishing positivist approaches from natural law approaches 1) It is that jurisprudence theorizing about law trying to work out answer to what is law is concerned with Austin states law properly called HUMAN law posited by human beings EITHER no such thing as Natural law as is speculation OR no necessary link to Natural Law on which one can base ones analysis of what human law is 2) idea that human law derives from human beings in particular some theories from the wills of the human beings their desires derives from Austin the Will theory of law some human beings at the top sovereign who wishes/desires/wills to have other humans do or abstain from doing things many theories that human law derives from human wills as opposed to nature/Gods will 3) ** important to many positivists The linchpin is that law is somehow imperative in character coercive in character tells people what MUST do or else - linked to coercion/sanctions RATHER than what ought to do or may do John Austin Will Theory and Imperative Theory of law since states that definition of law is around sanction/coercion o PROBLEM that Hart disagrees and builds theory on criticisms mainly that law is essentially imperative in character o Kelsen MAKES imperative or coercive character ESSENTIAL to his understanding BUT different to Austins theory 4) ALL positivists share the Separation Thesis all human laws have only an arbitrary or contingent connection with moral norms IF any connection at all contingent/arbitrary does NOT deny that might be connections between particular rules ie. dont murder and moral norms ought not to kill BUT these are NOT necessary connections for purposes of understanding what human laws are connection is NOT necessary it is arbitrary/contingent o Possible necessary desirable to describe what law is apart from considering what different people at different times thought what it ought to have been o Description of what law is completely separate question from HOW to evaluate laws principally separation of is and ought in law complicated separation Austin laws merit or demerit is COMPLETELY separate question from what law is

o Descriptive question is starting point for studying law o What law is and ought to be are SEPARATE issues o PROBLEM with separation thesis all positivists agree with that simple statement what law is and ought to be, are separate becomes statement which takes many different forms o Alexi simple separation thesis involves 60 odd questions how to separate from morals WHY is simple separation thesis is so complicated: Reasons o Law is full of moral sounding ideas simple ideas ie. o Law subspecies of moral language overlap NOT coincidental/arbitrary/contingent RATHER necessary o Fact that moral sounding words in course of legal language is that use of words have particular legal meanings that are different and can be separated from moral meanings indeed to pursue law as independent practice/study NEED to work out what legal meaning of terms are THEN can get some sort of analysis BOTH certain and clear UNLESS muddled analysis of morals unclear o Should NOT muddle in moral character BUT shouldnt even analyse law by looking at social considerations ALL detract from clear statement of what the law is o Realists HERE say that positivists are TOO formalistic detracts from real world Positivists Separation Theory (1) is logical necessity o (2) necessary from psychological POV, practical, political o Criticism of natural law FULL of logical flaws psychological nave politically nave and practically deficient Logical Flaws All based on Naturalistic Fallacy things to think about yourselves If you say biological fact people must eat in order to stay alive does it follow that MUST eat in order to stay alive does it follow that people ought to eat SIMPLY not logical o Depends on whether people ought to stay alive BUT is it a fact? To which answer is do old people ought to stay alive at all times THERE is logical flaw o Biological fact BUT moral fact depends NOT logically connected o Natural Law theories IF argue what law ought to be precondition for what it is caught in naturalistic fallacy o Problem: Psychological naivity natural law theories trying to psychologically searching for absolute values in attempt to seek refuge from uncertainties of world the challenges associated with conflicts of values WHEN face conflict of values and how confront them simply psychologically nave o Debate between Hart and Fuller Harvard Law Review about existence of Nazi Law positivists centre on approaching the question

by need to know what you are facing IF facing bad law need to know have choice between do I obey it or do I not? Positivists better to know what facing RATHER than subsuming and confronting other questions THUS define in way to exclude morally iniquitous laws Preferential practical approach to take NEED to know what IS and face issue o COUNTER by Natural Lawyer writing after WW2 changed his mind moving from what was seen as positivist to natural approach Because German lawyers trained in principles of positivism THEY were brought up law is the law THAT immunized them from thinking about whether morally right/wrong o Radbroook accuses positivism in being complicit to Naziims Politically naivety MANY terrible legal regimes throughout world/history PROBLEM that many atrocious political regimes claim that THEIRS are based on natural law SOME writers at time that say that what was basis of Nazi was master race IF natural law can be in support of atrocious regimes and morally good THEN it is politically nave to think that natural law has best of arguments Practical Limitations Point Law and how it should operate ROL THEN want it to operate in stable and certain way IF rely on determining for what laws are wide and flexible LIKE those associated with natural law reasoning THEN end up with nothing near ROL clear and determinable rules - determining legal obligations lack of certainty Practical arguments that support positivists practical approach can only get close to law as stable human activity IF avoid natural law type reasoning 3 suggestions WHY natural law reasoning able to continue despite STRONG criticism of positivists: o I) Positivists theories in trying to avoid uncertainties of natural law reasoning TOO narrow too restrictive ie. Speluncean HOW judges deal with novel situations can they use broader reasoning? Natural Lawyers come back and state that positivism TOO formalistic OR cannot deal practically with judges in appeal courts and what ACTUALLY do in name of law o II) Positivists theories have great difficulties in dealing with big development since Nazi era development of Human Rights as they develop somehow beyond authority beyond national legal regimes difficult to argue HOW they filter in revival of natural law theory occurred AFTER WW2 in light of what went on in Nazi Germany o III) Positivist theory have great difficulty in dealing with role of modern constitutions in classic of Austin called Constitutional Law NOT law rather Positive Morality VERY significant BUT not

really law from that premise going back to early 19th C problems with development of modern constitutions Positivist theories REALLY challenged have a lot of difficulty dealing with particular theories of Austin/Hart/ dealing with world that is becoming ever more juridified at a WORLD society level where NO clear sovereign -