Natural Law And Legal Positivism Essay

Natural Law And Legal Positivism Essay-24
For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law.By the mid-twentieth century, however, this account had lost its influence among working legal philosophers.Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. They think that the specific nature of law casts little light on their primary concerns.

For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law.

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While there are historical connections, and also commonalities of temper, among these ideas, they are essentially different.

The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts.

Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects.

It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists.

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.

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).

To say that the existence of law depends on facts and not on its merits is a thesis about the among laws, facts, and merits, and not otherwise a thesis about the individual relata.

Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism.

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