Positivism Flashcards
Who wrote Leviathan?
Thomas Hobbes
How did Hobbes describe the state of nature
“a solitary, poor, nasty, brutish and short life”
What did Hobbes propose
Absolute (but not arbitrary) power
What’s the backdrop to Jeremy Bentham’s work?
Blackstone’s complacency, prevailing theory of natural law
Sum up Bentham’s approach
Positivist, utilitarian, law = a fictitious social construct, first look at IS, then look at OUGHT
What was Bentham’s methodology
Strict separation of law as it is from as it ought to be
Bentham’s definition of law
A more accommodating version of Austins: command of the sovereign, backed by sanctions
What did Bentham think motivated people to obey the law
fear of sanction
What did Bentham propose?
Codification of ALL law
What did Bentham think of the common law
It was autocratic
What’s the backdrop to Austin’s work?
Bentham’s pupil, took his theory and developed it (misunderstood elements of it?)
Sum up Austin’s approach
Utilitarianism. Believed in the divine law as part of positive law. Divine law requires rationality, rationality leads us to utilitarianism
Austin’s definition of law
Command of the sovereign backed by sanctions (the command theory)
Problem’s with Austin’s theory
The command of the sovereign doesn’t explain democracy - the sovereign is not in the habit of obedience to anyone else. In a democracy the ruler is answerable to the ruled. Constitutional law does not fit with the command theory - Austin thought costitutional law = only positive moral obligations. Clearly not.
Backdrop to Hart’s theory
Command theory had been discredited, sought to rehabilitate positivism
Sum up Hart’s approach
Utilitarianism, “soft” positivist
Hart’s methodology
Keep is and ought/morality separate BUT look to the internal aspect of rules - why they are obeyed
What did Hart think motivated people to obey the law
The rule of recognition
Where did Hart stand on morality and the law
There is a minimum content of natural law. You see it in all legal systems, because of human frailty, all societies will need certain laws to protect their interests - property, life etc
Problems with Hart’s theory
The rule of recognition is what legal “insiders” think / decide. BUT Hart never really defined what a legal insider is
Backdrop to Kelsen’s theory
Kant, Hume, transcendental idealism
Sum up Kelsen’s approach
The pure theory, utilitarianism, law addressed to judges, grundnorm
Kelsen’s methodology
Seperate law from fact AND morals - doubly pure. Can’t get an ought from an is.
What did Kelsen think motivated people to obey the law
The grundnorm - trace back the reasons for oughts to prior oughts, at the base is the grundnorm, the master ought - different in different systems. Is still an ought, so no getting an ought from an is. Meant no theoretical need for a sovereign
Problems with Kelsen’s theory
Totrally theoretical, doesn’t explain legal systems as they are. Grundnorm hard to pin down. If the grundnorm depends on the moral attitudes of people, does taht mean that the grundnorm is derived from an IS?
