Legal Positivism (Stanford Encyclopedia of Philosophy)

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions of personal, as of social excellence. The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens; a mode of thinking which may have been admissible in small republics surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom. In the modern world, the greater size of political communities, and above all, the separation between spiritual and temporal authority (which placed the direction of men’s consciences in other hands than those which controlled their worldly affairs), prevented so great an interference by law in the details of private life; but the engines of moral repression have been wielded more strenuously against divergence from the reigning opinion in self-regarding, than even in social matters; religion, the most powerful of the elements which have entered into the formation of moral feeling, having almost always been governed either by the ambition of a hierarchy, seeking control over every department of human conduct, or by the spirit of Puritanism. And some of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been noway behind either churches or sects in their assertion of the right of spiritual domination: M. Comte, in particular, whose social system, as unfolded in his aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.

Legal Positivism | Jurisprudence | Politics

actions are legal by virtue of their source, thus fU11her disputing the idea LEGAL POSITIVISM vs.

Positivism in Legal Philosophy will be available on

In the abstractdrive safely seems to have intrinsic moral forcewhile drive at 55 seems morally arbitrary. Austins view is difficult to reconcile with constitutional law in the United States. For exampleunder the Fourteenth AmendmentCongress cannot enact a law that sets one speed limit for male drivers on interstate highways and another for female drivers.

Peccable () Liable to sin; subject to transgress the divine law.

The external aspect of the rule of recognition consists in general obedience to those rules satisfying its criteria of validity the internal aspect is constituted by its acceptance as a public standard of official behavior. Constitution and is consistent with the first fourteen amendments. On Dworkins viewthe thesis that judges have discretion only in the sense that they exercise judgment is trivially truewhile the thesis that judges have discretion in the sense that their decisions are not subject to being reversed by a higher authority is false. The severity of the threatened sanction is irrelevant any general sovereign imperative supported by a threat of even the smallest harm is a law. Ronald Dworkin describes this thesis as follows The set of these valid legal rules is exhaustive of the lawso that if someones case is not clearly covered by such a rule. Ronald Dworkin describes this thesis as follows The set of these valid legal rules is exhaustive of the lawso that if someones case is not clearly covered by such a rule. Neverthelessthe problem with Dworkins analysis is that it falsely presupposes an official cannot make new law unless there are no legal standards constraining the officials decision. Within legal doctrinelegal positivism would be opposed to sociological jurisprudence and hermeneutics of lawwhich study the concrete prevailing circumstances of statutory The word positivism was probably first used to draw attention to the idea that law is positive or positedas opposed to being natural in the sense of being derived from natural law or morality. Before we can begin to understand the relation of legal positivism to natural law theorywe must first see the relation of legal positivism to simple positivism and positive law. The pedigree and separability theses purport to be conceptual claims that are true of every possible legal system. According to the natural law school of jurisprudenceall written laws must be informed byor made to comport withuniversal principles of moralityreligionand justicesuch that a law that is not fair and just may not rightly be called law. Legal Positivism entry and the Encyclopedia of Law are in each case credited as the source of the Legal Positivism entry. But the situation is no different if the gunman takes the internal point of view towards his authority to make such a threat. Even the legislative decisions of Congressthe highest legislative authority in the nationare always constrained by constitutional standards. For examplein refusing to give up her seat to a white personRosa Parks believed that she was refusing to obey an unjust law. On Harts viewall actionsincluding virtuous acts like lawmaking and impermissible acts like poisoninghave their own internal standards of efficacy. While Dworkin acknowledges the existence of difficult cases that do not fall clearly under a rulehe believes they are not resolved by an exercise of judicial discretion. While Dworkin acknowledges the existence of difficult cases that do not fall clearly under a rulehe believes they are not resolved by an exercise of judicial discretion. Each lawyer cites cases favorable to her clients position and argues that the judge is bound by those cases to decide in her clients favor. Either approach is empiricaleven if not rigorously scientific. A system of rules that fails to satisfy P2 or P4for examplecannot guide behavior because people will not be able to determine what the rules require. Actuallyit is only in the twentieth century that some influential legal theorists began to call themselves positivists and their doctrines legal positivismnotably Hans Kelsen 1945H. For exampleMilton Friedman 1953 famously argued that positivism in economic science means that economics seeks to predict behaviornot to describe or explain it. Poisoning may have its internal standards of efficacybut such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Hartwho maintains that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values. But we cannot disagree over what I called pivotal cases. AccordinglyDworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law. During the Taliban rule in Afghanistanfrom which this example is drawnmany did flee.

The Sources Thesis was first set out in “Legal Positivism and the Sources of.
Hart, “Positivism and the Separation of Law and Morals,” in his Essays In.

Legal Positivism | Internet Encyclopedia of Philosophy

Plimsoll's mark () A mark conspicuously painted on the port side of all British sea-going merchant vessels, to indicate the limit of submergence allowed by law; -- so called from Samuel Plimsoll, by whose efforts the act of Parliament to prevent overloading was procured.

Sources Thesis, the identity and content of law is to be determined by social.

The pedigree thesis asserts that legal validity ..

See for his characteristic ideas at the time: “The Game Laws,” V (Jan., 1826), 1-22: “Law of Libel and Liberty of the Press,” III (April, 1825), 285-381.

The politics of legal positivism - White Rose Research Online Dyzenhaus.

Legal Positivism (Stanford Encyclopedia of Philosophy)

We do not, therefore, see in the United States a numerous and always turbulent crowd, who, regarding the law as their natural enemy, view it with no eyes but those of fear and suspicion. It is impossible, on the contrary, not to see that the mass of the people evince a great confidence in the legislation which governs the country, and feel for it a sort of paternal affection.