LC 0802 Module 04 Jurisprudence - Legal Positivism - Notes 2

Jurisprudence - Legal Positivism - Notes 

Introduction 

    In this article, we will explore the concept of legal positivism within the field of jurisprudence. Legal positivism is a philosophical approach to law that emphasizes the separation of law from morality and focuses on the formal aspects of legal systems. We will examine the key proponents of legal positivism and their theories, including Jeremy Bentham, John Austin, H.L.A. Hart, and Hans Kelsen.

Analytical School 

    Before delving into the theories of legal positivism, it is essential to understand the broader context of the analytical school. The analytical school of jurisprudence emphasizes the analysis of legal concepts and the use of logical reasoning in understanding and interpreting the law. This school of thought provides the foundation for legal positivism and sets the stage for the subsequent theories we will explore.

Bentham and John Austin's Theory of Positivism

    Bentham's Contribution Jeremy Bentham, a prominent legal scholar of the 18th century, made significant contributions to the development of legal positivism. He believed that law should be based on utility and aimed to create a comprehensive legal system that maximizes the overall happiness of society. Bentham's utilitarian approach to law influenced the positivist school of thought and laid the groundwork for future legal positivist theories.

    John Austin's Theory of Law John Austin, a 19th-century legal philosopher, further developed Bentham's ideas and presented his own theory of law. Austin's theory of law is known as the command theory, which posits that laws are commands issued by a sovereign authority and enforced through sanctions. He emphasized the importance of the command-giving aspect of law and believed that laws derive their legitimacy from the political authority that issues them.

Hart's Concept of Law 

    H.L.A. Hart's Concept of Law H.L.A. Hart, a prominent legal theorist of the 20th century, provided a significant contribution to legal positivism with his concept of law. Hart rejected the simplistic command theory proposed by Austin and introduced a more nuanced understanding of legal systems. He emphasized the importance of social rules and the role of legal officials in creating and applying law. Hart's concept of law focuses on the internal and external aspects of legal rules and explores the concept of legal obligations.

Kelsen's Theory of Law 

    Hans Kelsen's Theory of Law Hans Kelsen, an influential Austrian jurist, developed a theory of law known as the pure theory of law. Kelsen's theory emphasizes the hierarchical structure of legal norms and the primacy of the basic norm or grundnorm. He argued that legal validity is derived from a basic norm that serves as the foundation for the entire legal system. Kelsen's theory provides a unique perspective on legal positivism and has had a significant impact on the field of jurisprudence.

Conclusion 

    In conclusion, legal positivism is a philosophical approach to law that focuses on the formal aspects of legal systems, separating law from morality. Through the theories of Jeremy Bentham, John Austin, H.L.A. Hart, and Hans Kelsen, we have explored the development of legal positivism and gained insights into its key concepts. Understanding legal positivism is essential for law students to grasp different perspectives on the nature and function of law.

References

Bentham, Jeremy. "An Introduction to the Principles of Morals and Legislation."

Austin, John. "The Province of Jurisprudence Determined."

Hart, H.L.A. "The Concept of Law."

Kelsen, Hans. "Pure Theory of Law."