Divine law cannot be attained alone by the means of natural reason alone; the precepts of divine law are disclosed only through divine revelation. Natural law includes possession of reason and free will, and should differentiate between good and avoid evil and appreciated the theory of natural law of morality. On his view, a human law (that is, that which is promulgated by human beings) is considered valid only insofar as its content conforms to the content of the natural law; as Aquinas puts the point: "Every human law has just so much of the nature of law as is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law". To paraphrase
Kelsen defines law as a type of norm. Therefore, it is subject to a normative order, which makes the “the specific meaning of an act of will directed at a definite human behavior”. Afterwards, Kelsen prescribes two conditions, which if fulfilled by any legal norm, it “is” a proper positive norm. The first condition is that: this norm should be “posited” to be created by an act of a human being, subsequently, any norm created by a god, by nature or by a superhuman being is not “positive” law. The second condition is: the legal norm must be effective which means that people should obey the legal norm and if not obeyed at least applied to them.
He writes that a theory of law must be free from ethics, politics, sociology, history etc. and must be logically self-consistent.1 Kelson is often described as a positivist. But Kelson’s normativism is conceptually distinct from the empirical tradition of legal positivism because it confuses law with fact. He rejects Natural law theory because it confuses law with morality. For Kelson, the law consists of norms:
This is because the consequences of the utilitarian mentality can’t be applied in all situations due to the dangerous outcomes it can lead to. Kantian ethics is concerned about practical reason and motives rather than the consequences of the action. In most cases, the utilitarian will base their actions on what the best result is for the greatest number of people, while Kant argues that a goodwill “is good only through its willing” (Kant, 2008, p. 106). In fact, Kant argues that even “with the greatest effort it should yet achieve nothing, and only the good will should remain…yet would it, like a jewel, still shine by its own light as something which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value” (Kant, 2008, p. 106).
INTRODUCTION John Austin is considered by most to be the creator of the school of thought known as positivist school. Austin's famous formulation of what could be called the “dogma” of legal positivism is as follows: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. He was the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were
Lord Denning started his reflection on Equity’s role with the examination of the relation between law and society: when the rules are given the force of law, they must be obeyed because they are law and not because people accept and agree with the reasons on which they are founded. It is important to understand that the rule is the rule and not the reason for it. A reason can cease to be valid, but the rule will still be
The reason that a law is just, wise, efficient, or prudent doesn't give an ample justification for considering it to be the actual law. But different situations demand different manner in which the law should be implemented. This is where the theory of positivism comes in. According to positivism, laws are nothing but postulates i.e. a matter of fact of what has been posited (ordered, decided, practiced,
All laws that are promulgated must be measured up against the constitution. According to Finnis, we must understand human ideas and institutions in terms of their value and purpose, which necessarily requires evaluation and normative judgment. Therefore, we must evaluate the constitution first, before we measure laws against
There is no reason to think that these rulers would cease to wish to resort to paramilitary forces or groups of thugs who informally exercise violence on those who, although acting within the framework of established rules, express disaffection or opposition to the regime through their actions. The informal exercise of violence generalizes fear among the population, thus, individuals lose any incentive to engage
Both movements are antiformalist and sceptical; both seek to demystify the law: to reveal the law ‘in action’. But in at least four important respects CLS differs from realism. First, it is largely uninterested in the pragmatic or empirical concerns (what courts, lawyers, legislators actually ‘do’) that preoccupied the realists. For CLS the law is regarded as ‘problematic’ in the sense that it reproduces the oppressive character of society. Secondly, unlike the American realists who accepted the distinction between legal reasoning and politics, CLS views it as axiomatic that law is politics: there is nothing special about legal reasoning to distinguish it from other forms of reasoning.