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An Overview

By A.A. Alonto
AUF JD 1- Legal Philosophy

Legal

Positivism defined

Distinction

from Natural Law

Emergence from Descartes point of view

Austin and Benthams Early Positivism

Classical

Legal Positivism from Kelsen

The Law

as it is and as it ought to be

Defined:
an approach to Legal Theory which is concerned with posited law
that is, law which has been laid down, or posited by institutions like
parliament and the courts.
Theory of knowledge that can be acquired only through direct
observation and experimentation and not through metaphysics or
theology
Concerns whether laws could be shown to exist within a definable

legal framework
developed largely as a reaction against Classical Natural Law Theory

Natural Law

Positive Law

Considers the essential connection

Draws the sharp distinction

of law and morality;

between Law and Morality;

The law passes a moral test;

Laws existence and content of law

depends entirely on social facts;

An unjust law is not really a law-

Allows the people to know what

Aquinas

the law is, set the boundaries of the


law which will apply and what
consequences will be if they do not
obey the law

Road Rules:

Some people do, in fact, think that the road


rules are an imposition on their liberty. Society
disagrees with them, and through the
legislature, we will have rules about driving on
the road , and that certain penalties will apply if
we break them.
Within positivisms method we have to
accept these rules once they are created validly.
And they let us know the consequences if we
choose to disobey.
That is Legal Positivism in action.

18th early 19th centuries, legal theory was developed in the


work of Bentham and Austin;

Both legal positivist made use of Descartes idea on


Empiricism (a process of observing what you see and coming to
a conclusion entirely within the narrow limits of your
observations).

Descartes also suggested that a problem should be broken

into as many bits as is necessary to solve it, that which was


adopted by Bentham and Austin on their work.

Although,

Kelsen certainly falls into the


category of Legal positivism on commenting
that his theory was an attempt to exclude
subjective material from the scientific analysis
of law, there is a distinct difference between the
way Kelsen approaches law;

Bentham

and Austin approach law empirically,


while Kelsen approaches it conceptually.

Bentham wrote extensively on Utilitarianism

as

a rational way of ensuring that the content of


Law was desirable;
Austin

was also deeply concerned about the


social effect the Law had;

Its only for the purpose of analyzing

law, Legal
Positivists think it is necessary to keep the
moral value of the content of the law separate
from the structure of law.

David

Hume (1711-1776)

Drew attention to the lack of logical connection


between things as they were(description of what
happen) and things how they ought to be (what
someone might think should happen).

Analyze what was


happening and be
certain about your
conclusion

Proposition on morality:
You ought not to kill another person

While
empiricism
cannot provide us with
any certain knowledge
of morality, it can tell us
something about the
existence of positive
law.
Positive law is something which can be ascertained and
can be made the subject of analytical observation and
enquiry.

Jeremy Bentham
John

Austin
Rudolf Von Jehring
Hans Kelsen
Lon Fuller
H.L.A. Hart

Legal Theories (in Principle) by Marret Leiboff and


Mark Thomas (2004 Edition) pp 138 -143

Legal Positivism An Overview from Arguing


about the Law by Andrew Altman pp. 50-53

Legal Positivism from Philosophy of Law (An


introduction to Jurisprudence by Jeffrey G. Murphy
and Jules Coleman (1990) pp. 19 33;