One of the central and defining features of positivism is the focus on social facts and that the law is a ‘social construction’ having regard to the behaviours, attitudes and beliefs of people in their societal environment and interactions. Therefore, the normativity of the law is grounded in matters of social fact, which are non-normative, and which are not grounded in morals or morality. H L A Hart’s theory is the law as social practice which on the face of it, indicates that his theory is based on the societal practices which people participate in together as a systematic unit and this is why people obey laws. Consequently, people do not obey laws because it is morally right to do so, but because it is socially acceptable to obey such as a social rule. Thus, Hart considered the practice of law from an internal
The original position is a key point of Rawls’ theory of justice to set up the position for establish the principle of justice. This principle of justice is the fundamental principle to create well-ordered society which has equality and liberty. Rawls develop a theory of justice by revise the traditional social contract. He began with this statement to show his assumption “My aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant” Rawls considered Kant is also contractarian because of contract tradition which is a part of moral of justice and to create political society by social contract. Rawls tried to take the social contract more higher or more abstract than tradition approach, he called “the original position” this is a condition that Rawls took it as an appropriate for the choice to choose the fundamental principle of justice for the society.
Law is defined as the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision. It is also possible to be described as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members, so law is a formal mechanism of social control. Legal systems are particular ways of establishing and maintaining social order. Morality, on the other hand, is defined as the principles concerning the distinction between right and wrong or good and bad behaviour. It speaks of a system of behaviour in regards to standards of right or wrong behaviour.
Thus, the importance of the society should be measured in light of the individual and the importance of the individual should be considered in light of the society. This view was called the sociological approach. Montesquieu was the first thinker to take into account the influence of social conditions on the legal
These things could include social institutions, rules, values, and norms. They have control over an individual’s life. Durkheim believed that society was made of individuals, but in order to study society we must look beyond the individual to the social facts. Social facts act external to the individual and impose themselves upon the individual, according to Emile Durkheim. If the rules of social facts are violated then there can be punishment or social ridicule.
Hermeneutical phenomenology was our topic as a group and this topic is a complex subject compared to the other social theories. As from what I have understood in this topic, hermeneutics is the art of understanding and the theory of interpretation. Hermeneutic phenomenological research is rested on the ground of subjective knowledge. The epistemology of this social theory is grounded on the belief that knowledge is made possible through subjective experience and insights. Furthermore, the ontology of this particular social theory is concerned with reality.
The novelty of claim may arise and Court may recognize a novel claim. Salmond’s critics believe tort law is a system based on the principle of protecting the legal rights vested in a person and the society (“right in rem” and right in persona” ) and the courts as the guardian of law have to be allowed the flexibility to interpret the
Therefore, Lord Devlin based on consensual morality has focused more on the enforcement of morality according to the general concept of society. To understand the relationship between law and morality, Lord Devlin has proposed a set of rules. Firstly, the requirement of general sense of right and wrong in a society which is known as common morality as it is a right-minded value that should be maintained by the law. Secondly, there may be bad laws, bad morals or bad societies due to the reason that the law might not serve the society but destroy it even though it is a valid law and provides profit to some people in the
Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the works of Weber). These approaches included the notion that individual in a society accept rules from legitimate authority in exchange for security and economic advantages (as in Rawls) – social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the that the principle function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom. HISTORICAL EVOLUTION OF HUMAN RIGHTS Human Rights is not a modern phenomenon.
According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc. ); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject