Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The existence of law is one thing; its merit and demerit 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. The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist.
Third, they emphasise the social ends of law rather than sanctions; fourth, they insist that legal precepts be used as guides to socially desirable results rather than inflexible molds and lastly, their philosophical views are diverse, usually positivist or some branch of the social-philosophical school[ J.A. Gardener, 4]. Dean Pound has frequently referred to law as "experience developed by reason and reason tested by experience”. In this field, Pound has made one of his major contributions to the law as a means of social engineering, the classification of legal history into five stages and the discovery and specific formulation of the ends of law in each of these stages. The first stage is primitive law, in which the end of law is to keep the peace.
clarified analogically in this manner: Theoretical philosophy explains how the concept of a cause gives rise to necessity while Practical philosophy explains how the concept of obligation brings about necessity even though the necessities of science and ethics might be wholly different. Consequently, Kant’s earlier investigation of the necessity of moral obligation is transferred to his treatment of critical philosophy in order to open a new approach to an old problem. For him, this ‘prospective reform’ must derive from a new objective notion which states that scientific and moral obligations are neither simply out there nor in us. While Hume’s challenge is by observing the notion of exclusive truth proposed by empiricists or rationalist which
As adopted by Hart, legal positivism stands for the absence of connection between law and morality and promotes the view that law is comprised by rules made by human beings. Legal positivism sees law as a social construction whose legality, even in case of insufficiency or imprudence, must not be
He does not hold the view of the content of the law being morally constricted, but there exists certain moral constraints on procedural mechanisms on how laws are made and carried out. He sees his inner morality principles as a procedural version of natural law on how behavioural guides should be created and carried out in order for it to be effective. And while classical naturalists believe on the effect the moral constraints operate on individual laws, Fuller sees morality providing constraint not just on individual laws but on the legal system’s existence. Law is interconnected with, changes and grows in line to reflect the needs of society, The court’s role is not a passive one, it takes an active role in explaining the significance of a shared purpose in a symbiotic relationship with society, with law providing order. He views the law as an activity and the legal system as the product of a sustained purposive effort .
This is also valid on account of the link between law and social sciences or science.3 Thinking of which, leads us to various illustrations and examples wherein law has not been able to make a mark in isolation or the study of law in dissociation with other subjects holds good. Law is a social phenomenon. The relationship between legal forms and social sciences has been rapidly growing in India over the previous decades. Ethics: Ethics involves areas of human behaviour or activity which are governed according to moral principles. For lawyers, it is always true that their allegiance is split – a duty is owed to the court while another is owed to the client.
We can say that these legal positivists are concerned with the fact of whether or not it derives its validity from or is created by the sovereign.To them, morality does not play a central role , in fact it is irrelevant . A law is valid if the sovereign says so. The roots or historical aspect of the law matters,that is , proper procedures must be followed by the sovereign in order to make law.How can the validity of the law be detected or judged ? Positivists answer this in the form of two parts or questions; the first part being if the law was established by the right authority and the second part being if true or correct procedures were followed by the authority.If these two questions are answered with a 'yes ' then only can one say that the law is valid. Then came the command theories according to which, law exists only if the commands came from the sovereign.If there is failure to act in accordance with a command then this must be supported or backed up by punishing those who don 't comply with the commands .By punishing, we mean that a threat of sanction must
Because legal formalism can be compared to a concrete approach which may often over look the context of cases resulting in an unjust outcome, there are various critques on this approach. In an article written in the Stanford Law Review by William Simon, it was noted that one of the criticisms of legal formalism is that it should aspire more of a “psychological vision”, which moves the focus away from the professional discourse of lawyers and judges towards a practical interactions between legal advisors and clients. This vision aims to establish a more hands-on approach to confront the concrete realities of lawyering. A critquie on legal formalism by instrumentalists are of the opinion that because formalists do not recognise the gaps in the law, they are deluded in ths sense that they believe that they can only focus on the law itself. However legal concepts are not so narrow to cover every situtation and its context.
constitution as the highest, derivable from nothing beyond, through the quality of sovereignty, but by this ultimate norm to the whole system of law raised by it. The norms which emanate from the constitution have to apply coercive measures to administer. The significant features of a legislation are the wrong involved in not complying with "the norm and the organ of a politically organized society which is to apply a provided coercive measure to the wrong. Kelsen, disregards natural law philosophy, nor is concerned with developed or less-developed legal systems, neither with the existential facts of particular legal systems-has developed in his words 'a pure theory of law ', austere in
According to some critics of positivism, mere enactment of a law does not mean society should accept all such laws as legitimate and binding. In Nazi Germany, Adolph Hitler’s regime brutally stripped Jews of any governmental protection through a labyrinth of legal codes. Legal positivism sometimes emasculates the social function of law by preventing it from serving human needs. Thus, these critics conclude that a written law ceases to be legitimate when it is divorced from the principles of fairness, justice and