Legal Positivism

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  • Created by: Launston
  • Created on: 12-05-14 11:18
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  • Legal Positivism
    • Separability thesis
      • The law is as serviceable for evil as it is for good
        • Austin - Command Theory - Law is a command of the sovereign which may be evil
          • Kelsen - the validity of law depends on a chain of unbroken norms - links back to the grundnorm
    • Hart
      • Legal standards are determined by conformity to conventionally accepted criteria of legal validity - no moral restrictions on this
        • Superior to Austin's brute force view - explains laws ways of making conduct non-optional by contrast with the use of force
          • Beyleveld and Brownsword - officials must consider their conduct to be moral for them to impose it on others
            • Hart - judges must regard the fact that Parliament enacted a provision as a reason in itself to obey it
              • Law and morality both use terms such as rights and duties  but these should not be confused with one another
    • Exclusive Positivism - Raz
      • Plain-fact view
        • All criteria of legal validity must be source based - moral tests are inconsistent with the nature of law
          • First order and second order reasons for acting
            • Authority provides the second order and it is justified if we are more likely to comply with reasons that apply to us if we obey authority
              • The law must be capable of possessing legitimate authority - rules should be presented as the law makers view of how to behave and established by reference to historical sources
                • If the merits of a rule must be examined it cannot act as authority
                  • Rules are meant to replace our reasons and not be weighed against them
                    • Why should legal rules completely replace our own decisions?
    • Inclusive Positivism - Hart
      • Legal reasoning is not always factual - judges may refer to moral considerations
        • There are no boundaries on the judges rule of recognition - in US laws are measured against the bill of rights which is a fairness requirement
          • Which norms are legal is a matter of convention - can be unjust or can be moral
            • This is not a threat to the separability thesis - does not say that link between law and morality is impossible, just unnecessary
      • Dworkin's Analysis
        • The identification of law in every legal system necessarily involves moral judgment
          • Inconsistencies between inclusive positivism and other forms of positivism - IP is not positivism at all
            • Cannot accept moral criteria of legal validity which is controversial whilst having factual test for determining law
              • However it is possible to distinguish between disagreement about the content and the applicability of the rule
                • Dworkin - the function of law is to provide reliable public standards of conduct and morals cannot be uncontroversial
                  • Law doesn't always need to be more certain than flexible - uncertainty is desirable for correct judgments
                    • Moral tests can still provide reliable public standards of conduct as some moral tests are easy


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