Legal Positivism
- Created by: Launston
- Created on: 12-05-14 11:18
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- Legal Positivism
- Separability thesis
- The law is as serviceable for evil as it is for good
- Austin - Command Theory - Law is a command of the sovereign which may be evil
- Kelsen - the validity of law depends on a chain of unbroken norms - links back to the grundnorm
- Austin - Command Theory - Law is a command of the sovereign which may be evil
- The law is as serviceable for evil as it is for good
- Hart
- Legal standards are determined by conformity to conventionally accepted criteria of legal validity - no moral restrictions on this
- Superior to Austin's brute force view - explains laws ways of making conduct non-optional by contrast with the use of force
- Beyleveld and Brownsword - officials must consider their conduct to be moral for them to impose it on others
- Hart - judges must regard the fact that Parliament enacted a provision as a reason in itself to obey it
- Law and morality both use terms such as rights and duties but these should not be confused with one another
- Hart - judges must regard the fact that Parliament enacted a provision as a reason in itself to obey it
- Beyleveld and Brownsword - officials must consider their conduct to be moral for them to impose it on others
- Superior to Austin's brute force view - explains laws ways of making conduct non-optional by contrast with the use of force
- Legal standards are determined by conformity to conventionally accepted criteria of legal validity - no moral restrictions on this
- Exclusive Positivism - Raz
- Plain-fact view
- All criteria of legal validity must be source based - moral tests are inconsistent with the nature of law
- First order and second order reasons for acting
- Authority provides the second order and it is justified if we are more likely to comply with reasons that apply to us if we obey authority
- The law must be capable of possessing legitimate authority - rules should be presented as the law makers view of how to behave and established by reference to historical sources
- If the merits of a rule must be examined it cannot act as authority
- Rules are meant to replace our reasons and not be weighed against them
- Why should legal rules completely replace our own decisions?
- Rules are meant to replace our reasons and not be weighed against them
- If the merits of a rule must be examined it cannot act as authority
- The law must be capable of possessing legitimate authority - rules should be presented as the law makers view of how to behave and established by reference to historical sources
- Authority provides the second order and it is justified if we are more likely to comply with reasons that apply to us if we obey authority
- First order and second order reasons for acting
- All criteria of legal validity must be source based - moral tests are inconsistent with the nature of law
- Plain-fact view
- Inclusive Positivism - Hart
- Legal reasoning is not always factual - judges may refer to moral considerations
- There are no boundaries on the judges rule of recognition - in US laws are measured against the bill of rights which is a fairness requirement
- Which norms are legal is a matter of convention - can be unjust or can be moral
- This is not a threat to the separability thesis - does not say that link between law and morality is impossible, just unnecessary
- Which norms are legal is a matter of convention - can be unjust or can be moral
- There are no boundaries on the judges rule of recognition - in US laws are measured against the bill of rights which is a fairness requirement
- Dworkin's Analysis
- The identification of law in every legal system necessarily involves moral judgment
- Inconsistencies between inclusive positivism and other forms of positivism - IP is not positivism at all
- Cannot accept moral criteria of legal validity which is controversial whilst having factual test for determining law
- However it is possible to distinguish between disagreement about the content and the applicability of the rule
- Dworkin - the function of law is to provide reliable public standards of conduct and morals cannot be uncontroversial
- Law doesn't always need to be more certain than flexible - uncertainty is desirable for correct judgments
- Moral tests can still provide reliable public standards of conduct as some moral tests are easy
- Law doesn't always need to be more certain than flexible - uncertainty is desirable for correct judgments
- Dworkin - the function of law is to provide reliable public standards of conduct and morals cannot be uncontroversial
- However it is possible to distinguish between disagreement about the content and the applicability of the rule
- Cannot accept moral criteria of legal validity which is controversial whilst having factual test for determining law
- Inconsistencies between inclusive positivism and other forms of positivism - IP is not positivism at all
- The identification of law in every legal system necessarily involves moral judgment
- Legal reasoning is not always factual - judges may refer to moral considerations
- Separability thesis
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