Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A. Hart, whose work The Concept of Law caused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law. In more recent years the central claims of legal positivism have come under significant attack from Ronald Dworkin.
It is difficult to summarize positivist thinking, but it is generally accepted that the central claim of legal positivism is the following:
"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits."[1]
Contents |
Legal positivists make some distinctive claims about what constitutes legal validity. It is difficult to improve on the following introduction offered by Leslie Green: "Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Legal positivism was focusing on how to prevent possible conflict between concurrent rule(s) and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to the authority to abolish a law(s). Why the tendency is critical is for that the claim simultaneously opens the possibility to directly access to the constitution by those who have not direct legal interest so that the possible vein claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way of legal reasoning in term of more nomothetic (rule-making) approach to a case in turn. To the point, legal positivim and legal realism are similar to each other except to recognizing the source(s) of law and jurisprudene. The reason why legal positivism is popular to are largely depending on its assimiliation to the modern normal science and its acceptance of social class theory else."[2]
Despite the central claim of legal positivism being so that legal validity depends on sources, legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust and the state may be quite illegitimate and as a result there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should in fact apply it in a particular case. As Ian Gardner has said, legal positivism is 'normatively inert'; it is a theory of law not a theory of legal practice or adjudication or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation.
Legal positivism should be distinguished from legal realism and such legal realists as Oliver Wendell Holmes, Jr. The differences are both analytically and normatively important.
Niklas Luhmann asserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)."[3] But no positivist has ever asserted that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. And as far as the moral validity of law is concerned, all positivists—and realists—maintain that this is a matter of moral principles. 'The power of decision' has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision.
In English-language philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham made a sharp distinction between people he called:
The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors.
Bentham was also noted for calling natural law "nonsense upon stilts."
The distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized by most members of a society, the authority of which is enforced by the use of sanctions, but which is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents.
The three basic tenets of Austin's positivism are:
Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining 'a sovereign', Austin recognized it as one whom society obeys habitually. This sovereign can be a single person or a body, like sovereign-many - Parliament, comprising numerous individuals, each with varying authoritative powers. Austin's theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, for instance contract law, Austin says failure to obey the rules does indeed result in sanctions; however, such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control other people. This definition of law was criticised by the 20th century legal philosopher H. L. A. Hart, who said that it was analogous to a gunman enforcing his demands with a threat of violence.
Austin was greatly influenced in his philosophy by Jeremy Bentham.
Kelsen's is considered a very strict and scientifically understood type of legal positivism. It is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition."
His theory has disciples among scholars of public law worldwide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In English-speaking countries, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both differed from Kelsen's theories in several respects.
H. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but claimed that Austin's Command Theory failed in several important respects. In the book The Concept of Law, Hart outlined several key points: Among the many ideas developed in this book are:
A pupil of H. L. A. Hart, Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This included editing a second edition of Hart's 'The Concept of Law', with an additional section including Hart's responses to other philosophers' criticisms of his work.
Raz has also argued, contrary to Hart,[4] that the validity of a law can never depend on its morality.[5]
|
|||||||||||||||||||||||||||||||||||||
|
|||||||||||||||||