Positivism

Masters
Essay
Philosophy
Pages 8 (2008 words)
Download 0
Positivists claim that the legal validity of a rule is a matter of that rule's derivability from some basic conventional criterion of legal validity accepted in the particular legal system in question . . . The mere fact that a rule is just or reasonable will not make it a law; nor does the injustice of a rule demonstrate that it is not a law."

Introduction

Legal systems are not static, immutable structures but rather mutable, and ever-changing organisms. The fact that they are constantly changing means that some constancy as regards to the need to obey the "rules" of a legal system is needed. Otherwise there is chaos.
The apparent paradox within the idea that "the mere fact that a rule is just or reasonable will not make it a law" and also, "nor does the injustice of a rule demonstrate that it is not a law" is in fact satisfied by an understanding that laws are, by their nature, limited in scope. Laws cover a finite number of situations whereas the experience of life for the series of individual human beings that make up a society is infinite. Thus it might well be "just" and/or "reasonable" to have a rule that people should be "kind to one another", but this will not make such a law feasible. Conversely, a rule that says that people of different races cannot marry (as occurred in the US South) is not made invalid as a law just because it is unjust. The morality (or otherwise) of a rule is, within the positivist sense, irrelevant to whether or not it is a law. It is a law because it is held within a complex legal structure that defines it as "law".
If laws are essentially arbitrary in nature, why should citizens of ...
Download paper
Not exactly what you need?

Related papers

Social and natural science
The main difference between these sciences is seen in the object of their discussion and research. With regards to positivism, it is more relevant to explore new phenomena and analyze new objects on the basis of positive knowledge, which is based on observable facts. Therefore, social sciences should integrate logical principles for their researches; otherwise they would obtain irrelevant results.…
Interpretation & evaluation of one theory belonging to H.L.A. Hart in book 'Concept of Law'
However, his perception on positivism may be defined as the pinnacle of his argument. The central perception that makes this topic outstanding in the ears of the audience is the compelling attitude which it triggers from both convictions. Harts seems to perceive a differing conviction on legal positivism as compared to Ronald Dworkin. The focus of this essay will be narrowed on evaluating the…
Phil of Law
Among the lawyers, it designates the instincts and emotions found in every human being, such as love for offspring. When natural law is applied, the jury uses the power of reasoning to give a verdict that is universally and morally accepted. Legal realism is contrary to the natural law. In legal realism theory, legal rules are based on the decision of the judiciary and are given in the interest of…
Critic and Target
The advancing science and technology resulted in different lifestyles, which definitely changed the group dynamisms. It thus irrelevant to attribute some of Comte’s principles to the life of the American society at the time that the likes of Du Bois lived (Du Bois 5). In his theory of positivism, Auguste Comte, one of the earliest French philosophers, devised a number of psychological theories…
Second Paper: Version 2
During the proceedings, a large crowd burst into the court room and invited Shadrach to accompany them out. Eventually, Shadrach managed to escape to Canada. However, eight of his alleged rescuers, four whites and four blacks, were arrested and were charged with the violation of the Fugitive Slave Law by aiding the escape of the slave. Despite taking oath and promising to abide the law, the jurors…
Empiricism
We should reject knowledge claims concerning matters of fact about the nature of the world which are not supportable by the evidence of experience. This leads to a tendency among empiricists to emphasize that the limit of human knowledge and imagination is bounded by the limit of our experience. Empiricists reject the rationalist claim that it is possible to come to know by a priori reason alone…
Positivism
Legal systems are not static, immutable structures but rather mutable, and ever-changing organisms. The fact that they are constantly changing means that some constancy as regards to the need to obey the "rules" of a legal system is needed. Otherwise there is chaos.…