13 Dec Write a Note on Legal Positivism
From this framework, Kelsen argued that the regression of validated standards could not last indefinitely and had to arrive at a root cause, which he called the basic standard. The legal system is therefore a system of legal norms linked by their common origin, such as the branches and leaves of a tree. Furthermore, Dworkin asserts that the legal authority of norms such as the Riggs Principle cannot be inferred from promulgation in accordance with purely formal requirements: “Although the principles are supported by the official actions of legal institutions, they have no simple or direct connection with those acts to formulate that link in terms of criteria, which are established by an ultimate rule of primary recognition” (Dworkin 1977, p. 41). Unlike legal regulations, legal principles do not have a canonical form and therefore cannot be explained by formal promulgation. The second thesis, which forms the basis of legal positivism, is the separability thesis. In its most general form, the separability thesis asserts that law and morality are conceptually different. This abstract formulation can be interpreted in several ways. For example, Klaus Faber (1996) interprets it as a meta-level assertion that the definition of law must be completely devoid of moral notions. This interpretation implies that any reference to moral considerations in the definition of the related concepts of law, legal validity and legal system is incompatible with the theory of severability. According to positivism, the source of a law is the establishment of that law by a socially recognized legal authority.
The merits of a law are another matter: it may be a “bad law” by a certain standard, but if it has been added to the system by a legitimate authority, it is still a law. Legal positivism implies neither an ethical justification of the content of the law, nor a decision for or against obedience to the law. Positivists do not judge laws by questions of justice or humanity, but simply by how laws were created. This includes the view that judges make new laws when deciding cases that do not clearly fall within the scope of the law. The practice, decision-making or tolerance of certain legal practices can each be considered as a form of legal creation. If the views of Finni and Fuller are therefore compatible with the positivist thesis, the same cannot be said of the important works of Ronald Dworkin (Dworkin 1978, 1986 and 2011). The most influential critic of positivism rejects theory on every conceivable level. He denies that there can be a general theory about the existence and content of the law; It denies that the local theories of some legal systems can identify law without resorting to its merits, and it rejects the entire institutional orientation of positivism. A theory of law, for Dworkin, is a theory of how affairs should be decided, and it begins not with an account of political organization, but with an abstract ideal that governs the conditions under which governments can use coercive force against their subjects. Coercion should not be used, he argues, Thomas Hobbes postulated in his groundbreaking work Leviathan the first detailed legal concept based on the concept of sovereign power.
As Hampton writes, “Law is understood [by Hobbes] as dependent on the will of the sovereign. No matter what a law is, no matter how unjust it seems, if it was ordained by the sovereign, then and only then is it the law. [8] However, there are discussions about Hobbes` status as a legal positivist. [8] [9] [10] The second thesis, which includes the establishment of legal positivism, is the separability thesis. This understanding suggests that any reference to moral virtue or ideals in the characterization of related ideas of law, legal legitimacy, and legal frameworks contradicts the separability thesis. In its broadest structure, the separability thesis certifies that law and morality are theoretically separate. This unique definition can be interpreted in several ways. For example, Klaus Faber (1996) decodes it as a case of meta-level according to which the meaning of the law must be completely free of ethical concerns. The British legal positivism mentioned so far was based on empiricism; in contrast, Germanic legal positivism was based on the transcendental idealism of the German philosopher Immanuel Kant. While British legal positivists view law as separate from morality, their Germanic counterparts view law as separate from facts and morality. The best-known representative of Germanic legal positivism is Hans Kelsen, whose thesis of legal positivism is explained by Suri Ratnapala, who writes: Legal principles, like other laws, can be promulgated or abrogated by legislators and administrative authorities. They may also become legally binding by court order.
Many legal systems recognize that rules and principles may be enshrined in law or lose their status as law by case law (Raz 1972, p. 848). This is a general but concise overview of the history and development of positivism since its inception. Also a brief discussion of the broader methodological problem of the role of evaluation in the construction of legal theories, a topic that has come to the forefront of the debate among positivists and legal theorists in general. A good introduction for students, PhD students and scientists. Critics of positivism in natural law (e.g., Fuller 1958) often complain that if positivism is right, there can be no moral obligation to obey the law as law (i.e., to obey the law as such, whatever the laws may be, simply because it is the law). As Feinberg (1979) puts it: The English jurist and philosopher Jeremy Bentham is arguably the greatest historical British legal positivist. In An Introduction to the Principles of Morals and Legislation, Bentham developed a theory of law as the express will of a sovereign. Bentham distinguished the following types of people: Although (3) is logically independent of (1) and (2), (1) (2) seems to imply: To the extent that judges rule on legally vague cases, they must create a new right. Thus, according to Hart, there are two minimum conditions that are sufficient and necessary for the existence of a legal system: “On the one hand, the rules of conduct valid according to the ultimate criteria of validity of the system must generally be followed and, on the other hand, its rules of recognition, which establish the criteria of legal validity and its rules of modification and jurisprudence, must effectively act as common public standards of official conduct. be accepted.
by its officials” (Hart 1994, p. 113). It is an important feature of Hart`s report that the rule of recognition is an official custom and not a norm necessarily shared by the wider community. If the image of the political system by the imperiatists was pyramid power, Harts is more like Weber`s rational bureaucracy. Law is generally a technical enterprise characterized by a division of labor. The contribution of ordinary subjects to the existence of the law can therefore mean nothing more than passive and, in extreme cases, perhaps less so. Therefore, Hart`s necessary and sufficient conditions for the existence of a legal system are that a society has a legal system only if and to the extent that it honors that ideal, and its law is the totality of all the considerations that the courts of such a society would apply morally justified, whether or not those considerations are determined by some source. In order to identify the law of a particular society, we must always engage with moral and political arguments, for law is all that is compatible with an interpretation of its legal practices that shows that they are best justified in the light of this invigorating ideal.
In addition to these philosophical considerations, Dworkin invokes two characteristics of the phenomenology of judgment as he conceives it. He notes a deep controversy among lawyers and judges about how important cases should be decided, and he finds that the considerations they consider relevant to their decision are diverse. The controversy suggests to him that the law cannot be based on official consensus, and the diversity suggests that there is no single social rule that validates all relevant grounds, moral and non-moral, for judicial decisions. The Stanford Encyclopedia of Philosophy summarizes the distinction between merit and source as follows: “The fact that a policy is just, wise, effective, or prudent is never a sufficient reason to believe that it is really the law, and the fact that it is unjust, reckless, ineffective, or reckless is never a sufficient reason to doubt it. According to positivism, law is a question of what has been postulated (ordered, decided, practiced, tolerated, etc.); As we might say in a more modern idiom, positivism is the view that law is a social construct. [3] No jurist argues that the systemic validity of the law establishes its moral validity, that is, that it should be followed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes attributed, demanded that the law should actually keep the peace, otherwise we owe it nothing. Bentham and Austin, as utilitarians, believe that such questions always revolve around consequences, and both recognize that disobedience is therefore sometimes fully justified.