Positivism In Jurisprudence

A substantial debate regarding the law’s relationship with morality exists within the legal system. This debate gained new perspective when Oliver Wendell Holmes published The Path of Law in 1897. This work outlined Holmes’ view on the relationship between the law and morality. This paper will first consider whether or not Holmes believed that a writing must be moral in order to constitute a law. Next, the paper will explore my general agreement with Holmes’ view on this matter. Then, the paper will consider the best objection to my agreement with Holmes, and reply to that objection. Finally, the paper will end by drawing conclusions from the discussion of the relationship between morality and law. In this paper, I will argue that Holmes

A noteworthy criticism of Austin’s theory is that he fails to conceive that the sovereign lawmaker does not just consist of an individual in light of a modern society. Instead, it may also comprise of different governing bodies. For example in the UK, the system of governance is separated into three different bodies with the goal of maintaining a separation of power. It is likely Austin’s theory is based around the idea of a monarch which is irrelevant in the 20th

Hart goes on to write of the importance of being able to settle cases in the courts rather than legislating in advance. He refers to Von JHerring’s ‘heaven of legal concepts’, Hart explains this concept “this is reached when a general term is given the same meaning not only in every application of a single rule, but whenever it appears in the legal system.” This would appear to be the polar opposite of ‘open texture’ and would be prevalent in a legal system of mechanical jurisprudence. He explains that this would allow for a greater measure of certainty and predictability but at the expense of being unable to exclude cases which we may wish to exclude. “The rigidity of our classifications will thus war with our aims in having or maintaining the rule.” Thus the concept of mechanical jurisprudence would hinder the courts ability to take into account things such as equity and the pursuit of social aims, in the pursuit of a clear and rigid

In this essay, I aim to critically evaluate the role of integrity that was introduced by Dworkin’s philosophy of law which will allow me to analyse how integrity might help judges when faced with a hard case. However, not everyone believes that the principle of integrity does in fact help judges when faced with hard cases therefore I also aim to analyse Hart’s rule of recognition against Dworkin’s principle of integrity.

Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several

Even Hart himself admits that, ‘at the fringe of…. (law), we should welcome the rule-sceptic.' However he masks this with the ‘unquestionably rule-governed operations over the vast, central areas of the law.' Most positivists will admit that judicial discretion is inevitable in hard cases, and that decisions of the common law are posited in the courts, but the important thing for the realist is that law in it's entirety is a shoreless world of uncertainty. For me, the realist ideal is a tool whereby we can consider decisions throughout the vast central areas of law that Hart suggests, more than we could from a positivist or natural law stance. The reason is that if what the realists say is credible, we must accept that in some or all central cases, a judge can pick from a number of precedents as discussed, in order to find the one that best fits his predetermined and subjective answer. However, view this from the positivist outlook, and the whole process fits together nicely. The judge has simply applied a posited rule and achieved the right outcome subject to a rule of recognition. For both the realist and the positivist, the decision is law. The difference though, is that realism allows us to think about the moral dilemmas within the adjudication, whilst positivism does not need to consider any moral accordance to rationalize its theory. Just considering the argument in this way, it becomes clear that the realist approach could certainly be said to have more practical

The aim of this essay is to evaluate a positivist legal system or legal positivism, by analysing what it means, what it does the positive and negative aspects of legal positivism, how legal positivism works in a society. In order to understand a positivist legal system and how it works in a society, this essay is going to concentrate on some aspects of legal positivism, which are; the definition of legal positivism or positivist legal system, ideologies of legal positivism, features of legal positivism, advantages and disadvantages of legal positivism, how legal positivism or positivist legal system works in a society, before concluding with summary of the evaluation on legal positivism, and the analysis on legal positivism legal positivism works in a society with possible recommendations.

Herbert Lionel Adolphus Hart, was a British Legal Philosopher and worked for University of Oxford as Professor of Jurisprudence. Prof. Hart has written several books and few of his most important writings are, Causation of Law -1959, Concept of Law – 1961, Law liberty and Morality – 1963, Of Laws in General – 1970, and Essays on Bentham – 1982.

2. In the positivist definition of law a legal person is a purely formal legal concept, a fiction, a device, and a construct. The focus is on the variable rights and duties attributed. Through legal personhood, the way that society and the state interact with the individual is prescribed. Davies and Naffine outline Kocourek’s

For nearly two centuries the law of consideration was uncontested by virtue of the pre-eminence of the ruling in Stilk v Myrick (Stilk) that if someone performs, or promises to perform, an obligation under an existing contractual duty there is no sufficient consideration to constitute a fresh promise. This will be discussed in the essay in further detail and I will also explore the implications and the legal developments arising from the approach adopted in Williams v Roffey which has resulted in the courts having to refine other policing mechanisms like economic duress.

Called simply The Common Law, Holmes’s book, published in early 1881, is in essence the ripened product of his prior ten years of research, thinking, and writing. Unfortunately it is not much read today, even by law professors and thoughtful lawyers and judges. Like other classics, The Common Law is well known, may even find a place in an occasional lawyer’s library, but hardly ever opened, let alone read cover to cover. It has become the lawyer’s equivalent of a nice, impressive coffee table book: something for display but not for serious study, much like Stephen Hawking’s A Brief History of Time or Daniel Kahneman’s Thinking Fast and Slow or Thomas Picketty’s Capital in the 21st Century. To put it on the shelf without having read it is to give the façade of intellect without the reality, false advertising creating a misimpression.

On February 15, 1748 Jeremy Bentham was born in Houndsditch, England to father Jeremiah and mother Alicia. At the age of only twelve Jeremy attended Queens College, Oxford where he was considered one of the youngest men of his time to received his Bachelors at the age of fifteen in 1763 and Masters in 1766. Destined to follow in his father’s footsteps, Bentham attended Court of King’s Bench, Westminster Hall to prepare for his study’s in law. During his time at Westminster Hall Bentham would attend cases set before William Murray, 1st Earl of Mansfield a Judge known for his reform in English law, he was constantly finding flaws in the English judicial system. After taking the Bar in 1769, Bentham law career was short lived due to him discovering the Utility Principle witch he would dedicate the rest of his life. The year is now 1776 and Bentham is a self-proclaimed Legal Theorist and he anonymously published “A fragment on Government.” In this “Fragment” Bentham stated, “it is the greatest happiness of the greatest number that is the measure of right and wrong” (1).

Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should

The principle of Utility in Bentham’s eyes will replace traditions and is aimed at improving the felicity of those governed by its laws. It will focus on the consequences of legislation and all other human actions, as known as the pain and pleasure, rather than the duty or right or wrong the action potentially has. Bentham as an uncompromising consequentialist base his approval or disapproval of any actions on merely the beneficial or harmful of the result. This applied to not just individual, but also the governments. Thus, both parties have the duty to promote the happiness, interest, or advantage of those who are

Although John Austin is considered the father of the school of analytical jurisprudence, the origins of this school of thought date back to the time of Jeremy Bentham (1748-1832). Bentham’s work has come into light recently is now known to be the founder of this approach. Austin owes a lot to Bentham as much of his work is just a “para-phrasing” of Bentham’s work.