Hla Hart Essays In Jurisprudence And Philosophy

Hla Hart Essays In Jurisprudence And Philosophy-4
Legal positivism has a long history and a broad influence.

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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.

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?

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.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.It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars.Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact.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).Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking.While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has with other forms of social control.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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    Hart criticizes the concept of law that is formulated by John Austin in The Province of Jurisprudence Determined 1832 and that proposes that all laws are commands of a legally unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or obligations on individuals.…

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