Who Is the Founder of Positive Law Theory

The key elements of Kelsen`s theory are these. Facts are made up of things and events in the physical world. The facts are about what is there. If we want to know what caused one fact, we look for another fact. A stone thrown into the air falls because of the gravity of the earth. There are seasons because the Earth`s axis is tilted by 23.5 degrees. A standard, as opposed to a fact, is not about what exists, but about what should or should not be done. While facts exist in the physical world, norms exist in the world of ideas. The facts are caused by other facts. Standards are subordinated to other standards. The requirement that a person who commits theft must be punished is a standard.

It does not cease to be a norm because the thief is not punished. (It should not be caught.) The standard that the thief should be punished exists because another standard says so. Not all standards are laws. There are also moral standards. Legal norms are mandatory; Moral standards are not. [12] Moreover, the theory of discretion is compatible with certain forms of natural law theory. According to Blackstone`s classical naturalism, conformity with natural law is a necessary condition for the legal validity of any legal system. But to the extent that natural law is incomplete, there will inevitably be questions which will have several results compatible with natural law. Since none of the relevant findings in such cases violate natural law, there is no indication that moral limits are assumed to be necessary to the content of the law itself, which precludes Blackstone from supporting the discretionary thesis in such cases. If Blackstone believes that natural law contains a principle that deprives judges of discretion, then that obligation is, of course, incompatible with discretionary theory. But the assertion that there are necessary limitations on the content of the law, in itself, is consistent with the discretionary thesis, even if it is interpreted as a conceptual claim, as long as there are cases that are indifferent to natural law. Fuller`s jurisprudential legacy, however, should not be underestimated.

While positivists have long recognized that the essential purpose of law is to guide behavior by rules (for example, John Austin writes that “a law. can be defined as an established rule for guiding an intelligent being by an intelligent being who has power over him” Austin 1977, p. 5), they have not always recognized the implications of this goal. Fuller`s lasting contribution to legal theory has been to flesh out these implications in the form of his principles of legality. Nothing in my book or anything else I`ve written supports [a semantic representation] of my theory. Therefore, my teaching that elaborate municipal legal systems contain a recognition rule that sets out the criteria for determining the laws that courts must apply may be wrong, but nowhere do I base this doctrine on the misconception that it is part of the meaning of the word “law” that there should be such a rule of recognition in all jurisdictions. or the even more erroneous idea that, if the criteria for identifying legal grounds were not established without controversy, the term “law” would mean different things to different people (Hart, 1994, p. 246). The word “positivism” was probably used to draw attention to the idea that the law is “positive” or “postulated,” as opposed to “natural” in the sense that it is derived from natural law or morality. However, while it is fair to deprive a defendant of property under a law that did not exist at the time of the conduct in question, this also precludes depriving a defendant of property under a law that did not provide a reasonable time for the conduct in question to give rise to liability.

Due process and fundamental fairness require reasonable notice of conduct that will give rise to liability. As long as Dworkin acknowledges the existence of cases so difficult that only the best judges can resolve them, his theory is vulnerable to the same charge of injustice that he raises in the discretionary thesis. Hans Kelsen retained the monism of the imperativists, but abandoned their reductivism. According to him, the law is characterized by a singular form and a fundamental norm. The form of any law is that of a conditional order to the courts to impose sanctions when a particular conduct (the “offence”) is committed. From this point of view, the law is an indirect system of guidance: it does not tell subjects what to do; He tells officials what to do with their subjects under certain conditions. Thus, what we usually consider to be the legal obligation not to fly is, for Kelsen, only a logical correlate of the primary norm that provides for a penalty for theft (1945 [1961:61]). Objections to imperative monism also apply to this more sophisticated version: the reduction does not recognize important facts, such as the meaning of a flight ban; The law is not indifferent between people who do not steal and, on the other hand, who steal and suffer the penalties.

But in one respect, the theory of conditional sanction is in a worse state than imperativism, because it has no way of establishing the offence as a condition defining the duty of the sanction – this is only one of many relevant preconditions, including the legal capacity of the offender, the competence of the judge, the constitutionality of the offence, and so on. Which of this is the content of a legal obligation? A second issue concerns Austin`s view that sovereign legislative authority cannot be legally limited. According to Austin, a sovereign cannot be legally restricted because no person (or partnership) can constrain itself (or itself). Because constitutional provisions limit the legislative power to legislate, Austin is forced to argue that what we call constitutional law is not law at all; rather, it is primarily a “positive morality” (Austin 1977, p. 107). Hart`s qualification . that the recognition rule may be uncertain at times. undermines [his theory]. If judges are indeed divided as to what they should do when a subsequent parliament attempts to repeal a well-established rule, it is not certain that a social rule [of recognition] governs that decision; on the contrary, it is certain that no one does it (Dworkin 1977, pp. 61-62). The three main principles of Austin`s command theory are: However, excluding this dependency relationship means leaving many other interesting possibilities intact.

For example, moral value may derive from the existence of the law (Raz 1975 [1990:165-170]). If Hobbes is right, any order is better than chaos, and in some circumstances order can only be achieved by positive law. Or perhaps every existing legal system expresses conscious governance in a Hegelian manner in a world otherwise governed by chance; Law is the spirit of community that comes to self-confidence. Note that these claims are consistent with the fallibility thesis, as they do not deny that these supposedly good things can also bring evil, such as too much order or the will to power. Perhaps such derived links between law and morality are considered harmless because they say more about human nature than the nature of law. The same is not true for the following necessary links between law and morality, each of which goes to the heart of our concept of law (see Green 2008 below): This term is also sometimes used to refer to legal philosophical legal positivism, as opposed to schools of natural law and legal realism. In this sense, the term is often used in reference to the United States Code, parts of which reformulate acts of Congress (i.e. positive law), while other parts have been enacted themselves and are therefore positive law. [ref.

needed] The concept of positive law differs from “natural law”, which includes inherent rights conferred not by a legislative act, but by “God, nature or reason”. [1] Positive law is also described as the law that applies to a particular time (present or past) and place, composed of legal law and case law, insofar as it is binding. More specifically, positive law can be characterized as “the law actually and specifically adopted or adopted by the authority competent for the government of an organized legal society”. [2] In response, Hart denies both that his theory is a semantic theory and that it presupposes such a representation of what makes disagreement possible: These internal principles, according to Fuller, constitute morality because law necessarily has positive moral value in two ways: (1) law contributes to a state of social order, and (2) it does. by respecting human autonomy because the rules guide behavior. Since no set of rules can achieve these morally valid goals without adhering at least to the principles of legality, Fuller argues that they constitute morality. Since these moral principles are integrated into the conditions of existence of the law, they are internal and therefore represent a conceptual link between law and morality incompatible with the theory of separability. Thomas Mackenzie divided law into four parts, with two types of positive law: divine positive law, natural law, positive law of independent states, and the law of nations.

[9] The first, the positive divine law, “concerns the duties of religion” and flows from revelation. He opposed it to the divine law of nature, which “is known by reason alone, without the aid of revelation.” [9] The third, the positive law of independent states, is the law established by the “supreme power in the state.” In other words, it is a positive man-made right. [10] The fourth, international law, regulates “independent states in relations with each other.” [11] Austin regarded the law as orders from a sovereign enforced by a threat of sanctions.