source thesis legal positivism

An Assessment of the Positivist Critique of the Natural Law Claim that Law and Morality are Inseparable The central claim in the positivist approach to the place of morality is that the law draws its authority from the legitimacy of the law-making body and that this has nothing to do with morality. So long as certain conditions (varying between philosophers) are fulfilled, such as that the laws this body makes are generally respected, that they are made known for citizens to learn if they wish, and that the specific law was passed according to the correct procedures in that system, it qualifies as an authoritative law. Another way of putting this is that it is the form of the law, solely those factors that are extrinsic to that law itself which determine its authority. This contrasts with the Natural Law position that the authority of a particular law is dependent not only upon this form but upon the content also.[1] This is why natural lawyers claim that a law prohibits or instructs something in a way that offends grossly against the moral order apprehensible to the human conscience it should be struck down. This defining debate of jurisprudence is much more than a problem of correct terminology; it will be said by the natural lawyer that what the positivist accepts as ‘law’ is in many cases merely legislation, but the real disagreement is whether legislation can be authoritative when separated from morality. In the following it will be argued that while the positivist critique makes sense of important practical features of the law, a comprehensive analysis must recognise that the rational demands of the Law are prior to the contingencies of any human legal system. The contemporary Natural Law position espoused by John Finnis is followed, and it is shown that he effectively rebuts two key arguments made in favour of the separability of law and morality. The first.
Introduction If there is one doctrine that is distinctively associated with legal positivism, it is the separation of law and morality. The principal aim of jurisprudential positivists has been to establish that the essential properties of law do not include moral bearings. As opposed to classical natural law thinkers and in response to recent theorists such as Lon Fuller and Ronald Dworkin, positivists strived to dissolve any number of apparently necessary connections between the law and morality. In H.L.A Hart's seminal 1958 article on the ‘Positivism and the Separation of Law and Morals', he insisted that positivism is a theory of the nature of law, not a theory of how lawyers should reason, judges should decide or citizens should act. Hart took Jeremy Bentham and John Austin as his main predecessors; he defended the insistence on the lack of necessary connection between law and morality. Legal positivism indeed involves nothing more than ‘the contention that there is no necessary connection between law and morality.' Hart therefore resolves to a single core positivist legal thought that ‘it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.' Many other philosophers, encouraged by Hart, treat the theory as the denial of a necessary connection between law and morality. Jules Coleman does not hesitate at all in ascribing this legal positivism thesis. This is perhaps the prevailing view of legal positivists. During the past decades, this prevailing view has come into questions, it is held to be superficial and wrong. It has been criticised as hiding the true nature of law and its roots in social life, others thought it intellectually misleading and corrupting in practice. John Gardner, Hart's first positivist successor in the Oxford Chair of Jurisprudence, has asserts that the separation.
1. Development and Influence Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope.
Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law.  Legal positivism does not base law on divine commandments, reason, or human rights.  As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law. Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law. Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society. The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality. Table of Contents 1. The Pedigree Thesis The pedigree thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham, John Austin argues that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of.