Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes.
What then is distinctive of societies with legal systems and, within those societies, of their law?
Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.
157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.
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.
Natural Law And Legal Positivism Essay
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 of competing interpretations together with persistent criticisms and misunderstandings.Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it.Their discomfort is sometimes the product of confusion.The only influential positivist theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions.Such theists and relativists apply to morality the constraints that legal positivists think hold for law.Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits.The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs.The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.Among the philosophically literate another, more intelligible, misunderstanding may interfere.Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science).