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Legal Positivism

Founder : John Austin


Jeremy Bentham
HLA Hart
Joseph Raz

Definition: Legal Positivism is a theory about the nature of law, by its self characterization a
descriptive or conceptual theory
At most, the theory may have something to say about how certain ways of
operating are characterized but not on how they should be evaluated or reformed
Focuses on the law by comparing its study to a scientific approach
The law is what it is
The law is viewed as is and the consequences of the law isnt put into
consideration

Beliefs: Social Thesis


- Law is a social fact or convention
- There is no connection between the law and morality
Seperability Thesis
- Accessible to the human mind

Proponents :
Hart
- Conceptual Analysis
- To understand society and its institutions
- There is a difference between the way the law and the way it
ought to be
Dworkin
- Moral principle can be legally binding in the virtue of the fact
that they express an appropriate dimension of justice and
fairness
- Distinguished condition of legality and meaning of valid legal
rule
- For positivists, central figure is legislator; for Dworking, it is
the legal interpreter
Raz
- The critique of legality must be some determinate social fact;
norm has social source
- Author of Theory of Authority
o A norm is law only if it has a social source.
Incorporationism is the legal validity of a norm could
depend on its moral truth rather than on its having a
social source
Austin - Order of sovereign
- Norm is law; commanded by sovereign ( determined by
source)

Critiques for Natural Law:


It is not necessary in all legal systems that for a norm to be legal norm, it must
possess moral value. What norm count as legal norms in any particular society is
fundamentally a matter of social convention

A norm must be required by morality; morality has authority, in the sense that a
norm is a requirement of morality gives agents a reason to comply with it.

Rules provide agents with reasons for doing what thery do and with grounds for
criticizing those who fail to follow suit.

The legality of moral norms is not a function of their morality but their validity
under a rule of recognition