Positivist Theories Of Law And Morality

1660 WordsNov 1, 20167 Pages
Positivist theories of law can be described as “those who understand the law to be a particular sort of social ordering, a certain kind of social technology by which individuals who live together can coordinate their behaviour and resolve disputes.” Positivist theories also state that there is no necessary connection between law and morality and rejects the idea of a higher law. Classical legal positivism was first founded by Jeremy Bentham (1748-1832). Bentham’s aim was to provide an alternative to what he saw as ‘errors of the conventional jurisprudence’ of his time. His ideas were later developed by John Austin, who promoted the ‘Command Theory’ of law. HLA Hart was very much in favour of legal positivism; however, he didn’t agree with some of the concepts outlined by Austin. He analysed the classical theories of positivism, particularly those of Austin and Bentham and attempted to update this view of law. His argument for legal positivism challenged many of the concepts laid out by the classical theorists. This essay will, therefore, examine Hart’s argument, in favour of legal positivism, look at his analysis of other positivists theories as well as criticisms of his own theory, notably that of Dworkin, and come to a conclusion on whether he provides a persuasive argument in favour of positivism. John Austin’s theory on positivism was one of the main theories in which Hart critiqued in his legal positivism argument. Austin promoted the ‘Command Theory’ of law, within
Open Document