Jurisprudence - Legal Positivism
Short Note
1. Introduction
Legal positivism is a significant school of thought in jurisprudence that focuses on the separation of law from morality and emphasizes the importance of positive law created by human beings. This chapter delves into the foundations and key theories of legal positivism, highlighting the works of influential legal scholars such as Bentham, John Austin, H.L.A. Hart, and Hans Kelsen.
2. Analytical school
Before delving into legal positivism, it is important to understand the broader framework of the analytical school of jurisprudence. The analytical school aims to analyze legal concepts and principles through logical and linguistic analysis. It provides a systematic approach to understanding law and has influenced the development of various legal theories.
3. Bentham and John Austin's Theory of Positivism
3.1 Bentham's Contribution Jeremy
Bentham, an English philosopher and legal scholar, played a pivotal role in shaping legal positivism. His utilitarian philosophy and emphasis on the separation of law from morality laid the groundwork for the positivist perspective. Bentham advocated for a legal system based on the principle of maximizing happiness for the greatest number of people, regardless of moral considerations.
3.2 John Austin's Theory of Law
John Austin, a British legal theorist, further developed Bentham's ideas and established his own theory of law within the positivist framework. Austin defined law as a command given by a sovereign, which is backed by the threat of punishment. He focused on the legal system's coercive nature and the importance of obedience to legal commands.
4. Hart's Concept of Law
H.L.A. Hart, a prominent legal philosopher, proposed a significant refinement of legal positivism in his seminal work, "The Concept of Law." Hart introduced the concept of "secondary rules" to supplement Austin's command theory. According to Hart, law consists of primary rules that govern behavior and secondary rules that establish the framework for creating, changing, and adjudicating primary rules. He emphasized the role of social acceptance and the internal aspect of law, considering both the official and unofficial practices that shape legal systems.
5. Kelsen's Theory of Law
Hans Kelsen, an Austrian jurist and legal philosopher, developed a distinct version of legal positivism known as the "Pure Theory of Law." Kelsen sought to create a comprehensive and self-contained legal theory that would transcend political and social contexts. He proposed the idea of a "grundnorm" or basic norm, which serves as the foundational source of validity for all legal norms. Kelsen's theory focused on the hierarchical structure of legal norms and the importance of a logical and systematic interpretation of law.
6. Conclusion
Legal positivism, with its emphasis on positive law and the separation of law from morality, has been a significant school of thought in jurisprudence. This chapter explored the contributions of Bentham, John Austin, H.L.A. Hart, and Hans Kelsen to the development of legal positivism. Their theories have shaped our understanding of law and influenced legal systems worldwide. By studying legal positivism, students gain valuable insights into the complexities of law and its relationship with morality.
No comments:
Post a Comment