Theory Of Legal Positivism

Varsha Patel

Student Number: 35167831

LJU4801

Assignment 2

Unique Number: 748951

Due Date: 30 March 2016

Submission Date: 29 March 2016

Introduction

Philosophy is a scientific and therefore logical undertaking to analyse and comprehend the primary facets of the humankind and its continuation by rendering conjecture on the unknown in an ongoing dialogue. Legal philosophy then is the analysis and study of the entirety of legal schemes, its social, economic and political significance, with evolving emphasis on the role of values, rights and the government as well as the issue of justice.

Over centuries the development of each successive school of legal philosophy occurred by building on the tenets of and/or in response to the

Legal positivists concentrated on epistemology, questioning how knowledge of reality is obtained, unlike their pre-modern counterparts who focused on the analysis of reality. Legal positivism is a theory of knowledge concerned with the legal decision-making process as opposed to utilitarianism which studies the drafting of statutes. While all early modern philosophers adopted a scientific approach, the legal positivists applied an empirical approach holding that knowledge consisted of truths materially determined, in contrast with the rational social contract advocates. In short, positivism is a theory of knowledge which makes an empirical study of the legal adjudication process.

The epistemological, social and command concepts form the basis of legal positivism. A discussion of these concepts ensues followed briefly by the role of legal positivism in South Africa.

The core of epistemology is that citizenry assimilates knowledge of morality differently to that of the law. This marks a departure from natural law because it necessitates the distinction and division of morality from the law. The measure of the law then becomes utility rather than morality. Utility is the scientific gage of legal developments. A theory of drafting legislation, utilitarianism, assesses the impact of legal developments in terms of maximisation or minimisation of

(Values regulate significant issues while laws determine routine issues. Values endure, slow to evolve, while new legislation can be adopted. Moral adherence is optional while legal adherence is mandatory. Distinct punishment follows non-adherence to both systems of rules.)

The pre-modern precept of a sacrosanct natural order regulating both community life and social standing is made redundant by the positivist social thesis whereby community and scientific truths underlie the law.

Contrary to pre-modern concept of laws as enduring, universal constructs, positivism stipulates that laws, established by citizenry assent, are derivative of the prevailing social, economic and political environments and are therefore subject to change. The most signification ramification of this concept is that it becomes possible to expose the law to censure and rejection because it is a result of humankind’s actions rather than divine decree. Thus began the condemnation and fall of the fundamentally discriminatory class system.

Interestingly, legal positivists posit that it is social assent that equally leads to ethical systems. Both legal and ethical systems are constraints on humankind’s conduct. The law is a system of rules that aim to regulate and dictate the behaviour of