LLB290 Chapter Notes - Chapter 10: Legal Positivism, Positive Law, Empiricism
Legal Theories:
Chapter 10 – Correcting Irrationality: Positivisms and Law’s Common-sense:
10.10: What is Legal Positivism?
oModernism and legal positivism are closely connected
oNatural law social contract (Hobbes and Locke) classical positivism
oClassical English Positivism – BENTHAM AND AUSTIN
oLegal positivism:
Concerned with ‘posited law’ (correctly sourced law and power)
Separate morality and law
oClearest expression comes from Austin
Distinguishes between the existence of the law and its merit or demerit
Belief that validity is determined by the source, not merits
Necessary to exclude the consideration of the merits of the source
oBoth wrote extensively about utilitarianism
For the purpose of analysing law the two must be separate
oRange of theoretical and practical problems with the theory
oNazi Germany: demonstrates that legislators can be unreasonable and unjust and the
population cowed into agreement
Failure to provide a satisfactory explanation led to a rekindling of natural law
oPositivism: lets people know what the law is, sets boundaries of the law and identifies
consequences
oEventually rejected the focus on posited law, and focused on legal systems generally
oCharacteristic of the Enlightenment movement
oSome versions recognise that law and morality are intertwined, but must be separated in
legal analysis to the most significant degree possible
10.20: How do the Positivist Theories Approach Legal Analysis?
oDerive their analysis of legal systems from examination
oEmpiricism is the process of observing, analysing and concluding using rational and logical
analysis
oBentham: breaks down human motivation into a series of negative and positive responses
oAustin: breaks down the concept of law into a series of subsets and drawing distinctions
10.30: Classical Legal Positivism – was Kelsen a Positivist?
oAttempted to exclude subjective material from the scientific analysis of law
oInsists on separation of morality and law
Kelsen has a strict distinction
oSubstantial differences in Kelsens analysis compared to Bentham and Austin
Bentham & Austin look at commands, the sovereign and consequences
Kelsen is not concerned with real world things, and approaches it conceptually
Can properly be called a positivist
Different in terms of starting point
oEntire conceptual structure of Kelsens tests appears to collapse on itself
Strengthened positivism with his contributions
10.40: Is and Ought:
oHUME (1711-1776)
oBelief that there was no logical or necessary connection between what can be observed (is)
and what we might say about preferred types of behaviour (ought)
oOught involves propositions of morality that cannot be verified
find more resources at oneclass.com
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Document Summary
Chapter 10 correcting irrationality: positivisms and law"s common-sense: 10. 10: what is legal positivism: modernism and legal positivism are closely connected, natural law social contract (hobbes and locke) classical positivism, classical english positivism bentham and austin, legal positivism: Concerned with posited law" (correctly sourced law and power) Separate morality and law: clearest expression comes from austin. Distinguishes between the existence of the law and its merit or demerit. Belief that validity is determined by the source, not merits. Necessary to exclude the consideration of the merits of the source: both wrote extensively about utilitarianism. For the purpose of analysing law the two must be separate: range of theoretical and practical problems with the theory, nazi germany: demonstrates that legislators can be unreasonable and unjust and the population cowed into agreement. 10. 30: classical legal positivism was kelsen a positivist: attempted to exclude subjective material from the scientific analysis of law, insists on separation of morality and law.
