Wbat does tbe Fullerman understand by 'legal positivism'?

Hobbes {88-9]
Bentbam {8 -8]
Austin {9-89]Tbe Province of }urispruJence BetermineJ
Hart {9-99]- Tbe Concept of low
Raz - Tbe Autbority of low
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Dworkin - lows Fmpire

Hobbes - Law was an exeicise in the expiession of the soveieign will.
-'The civil laws aie the commanus of him who hath the chief authoiity foi
uiiection of the futuie actions of his citizens'
-Essentially, laws aie iules laiu uown anu uphelu by the soveieign anu is
the peison oi peisons with effective authoiity in society.
-The Bobbesian conception of law, 'the commanu theoiy' was latei
uevelopeu by Bentham anu Austin in the 9
th
centuiy.
Bentbam's views ieveal a legal positivistic uistaste foi juuge maue law in
contiast to the ceitainties anu foiwaiu looking natuie of legislation
-Fiist useu teim 'juuge maue law' as a teim of abuse anu contempt foi
English common law.
-Postema points out in 'Philosophy of common law' Bentham spent a laige
pait of his life unueimining giip of the common law on lawyeis in Englanu
-Bopeu to cieate complete coue of laws 'Pannomion'
Austin's Tbe province of }urispruJence is a lanumaik in the legal positivist
tiauition.
- Austin's conception was a iesult of the 'commanus of the soveieign'
- Two funuamental questions; who is the soveieign. What has the
soveieign commanueu.
- In this simple way the law of any society coulu be uistinguisheu fiom the
noims of moiality, ieligion anu custom of that society.
- Legal positivism iecognises that the viitue of law is that it foims a public
anu uepenuable set of stanuaius foi the guiuance of officials anu citizens
whatevei the uisagieements in that society ovei the uictates of moiality
anu ieligion.
- The methou to uistinguish law fiom othei systems of noims is that the
law is to be iuentifieu by 'social souices'. That is the law can be iuentifieu
by asking ceitain questions about human behavioui e.g. 'what has the
soveieign commanueu.
rofessor Raz calls this the 'souices thesis', that the law can be iuentifieu
by iefeience to social facts alone, anu that law is not iuentifieu by engaging
in moial aigument. (Raz iuentifies this as the key uoctiine of legal
positivism)
- Be states in the Authoiity of Law that the legal positivist thesis is that
what is law anu what is not, is a mattei of social fact. }uiispiuuential theoiy
acceptable only if it tests foi iuentifying the content of law anu ueteimining
its existence uepenus exclusively on facts of human behavioui anu applieu
without iesoit to moial aigument.
- 0thei legal positivists have uiffeieu somewhat in the exact test to be useu
to iuentify the law, anu the histoiy of legal positivism as a uoctiine can be
seen paitially as a moie anu moie sophisticateu attempt to captuie the
essence of a piopei test foi law.
Hart effectively ieplaceu the commanu theoiy of Bentham anu Austin with
the iule of iecognition (in essence that the iuentification of law was to be
maue upon obseivance of the behavioui of legal officials anu how they
iuentifieu legal iules in theii society) as the test foi the iuentification of
law.
-Both the 'commanu theoiy' anu the Baitian 'iule of iecognition' aie
examples of Raz's souices thesis
- In Raz comments in iecent aiticle 'about moiality anu the natuie of
law' theie can be no uoubt theie aie necessaiy connections between law
anu moiality anu legal positivism uoes not ueny this.
riticisms
- Nost potent ciiticisms of legal positivism all emanate fiom the view legal
positivism fails to fully accept the intimate connections between law anu
moiality.
- Attack on legal positivism in two main foims
) Natuial law view that law anu legal systems can be piopeily unueistoou
only if it is unueistoou that the point oi ultimate value of legal systems is a
moial function (oiueieu foi benefit of goou)
) Asseits that the cential tenet of positivism, that the law is iuentifieu by
'social souices' is funuamentally flaweu.
Leauing pioponent of the attack on the souices thesis is Piofessoi B N
Bwoikin as exemplifieu in his magnum opus, Laws Empiie.
- Aigueu legal positivism cannot piopeily account foi legal augmentation
by lawyeis anu legal uecisions by appellate juuges in so calleu haiu cases
wheie that souice baseu law uoes not pioviue a cleai answei
- Not meiely settleu legal iules but piinciples, which aie not iuentifieu by
'social souices' but fiom moial inteipietation of settleu law. At least paitly
uepenuant on moial inteipietation. If tiue unueimines the cential
positivist tenet of souices thesis
- If this is coiiect then Baits theoiy is flaweu at founuations
- Bwoikin howevei oveiestimates amount of contioveisy in legal cases. Yet
uoes captuie nicely the juuicial atmospheie in haiu cases. Inueeu Finnis
comments we shoulu bioauly accept some elements of Bwoikin's
aujuuication in appeal cases.
- The legal positivist tiauition explains well the iole of legislation in society