Legal Positivism

Question 1

Main characteristics of legal positivism

Answer 1

• knowledge can only be achieved via empirical observation
• seeks objective and morally neutral ways to study law as distinct, autonomous human action
• role for legal philosophy is to better understand a legal system

Question 2

Weaknesses of legal positivism

Answer 2

• does not consider morality in judicial decisions
• theory of law as command is inadequate and over simplified understanding of law
• does not account for human agency
• Problem of Penumbra- even positivist judges are deciding what is by what ought to be.
• does not consider issues of race, gender or class

Question 3

Comte

Answer 3

positivist scientific methods should be used to detect underlying laws of social progress.
- we can only arrive at true statements about the world by observing positive facts.
Three stages of knowledge:
1. Theological
2. Philosophical
3. Empirical

Question 4

Hobbes (one of the earliest legal positivists, started definition of law as sovereign)

Answer 4

law is a legitimate command from a sovereign that is obeyed by ppl

• without sovereign to enforce boundaries, life will be awful
• social contract: citizens agree to give up some liberty in exchange for security.

Question 5

Bentham

Answer 5

Developed Hobbes’ command theory in reaction to natural law and common law. Despised lawyers because they were inefficient, combative and impotent in the judicial process.

Question 6

Austin (explains all legal systems with general theory)

Answer 6

4 Main Characteristics of Positive Law

1. posited by a sovereign
2. takes the form of a command
3. involves the power to inflict pain on those who disobey
4. nurtures habitual obedience from subjects, ensuring regularity.

Question 7

Hart (modern natural law theorist)

Answer 7

• rules are integral to the most basic forms of law. There are two kinds of legal rules of obligation: primary and secondary. There are three forms of secondary rules:
  1. rules of change
  2. rules of adjudication
  3. rules of recognition.

Question 8

Kelsen (modern natural law theorist)

Answer 8

law is a particular kind of norm. a legal norm is a command which can empower, permit and discredit.

Question 9

What are the two minimum conditions necessary for law to be valid? (Hart)

Answer 9

accepting both primary and secondary rules.

Question 10

What is a basic norm/grundnorm? (Kelsen)

Answer 10

a norm that is the foundation of all other norms; the authorizing limit of all law in a specific society, with no higher norms of appeal ex: Charter of Rights and Freedoms.

Question 11

Who was the first person to define law as a sovereign command?

Answer 11

Hobbes

Question 12

Case Study: Fuller/Hart Debate

Answer 12

Fuller agrees with judicial decision, the wife adhered to an immoral and therefore invalid law.

Hart disagrees with the judicial decision, Nazi law regardless of morality was in force and was therefore legitimate, the wife should not have been convicted.