POSITIVIST Flashcards
Two approaches of the positivist perspective
- Law as a non-moral concept
- Law as uncluttered by metaphysical speculations
Two tenets of the positivist perspective
- The law is consciously created by the state. It is posited by the authority of the state
- Unjust law still commands authority and must be followed
Law as a non-moral concept
A law is valid regardless of its utility or morality
“The concept of law and morality may be intertwined, but the discussions must be separate”
HLA Hart
“It is never connected”
Hans Kelen
Law as uncluttered by metaphysical speculations
Nature of law must be studied empirically; the common element of all laws is command
An amalgamation of the empirical interest of mankind; the best proximation of what is just
The Covenant
The sovereign belongs the making of good laws to enforce the covenant.
The State
Three principles of John Austin’s Command Theory
- Power of a simple model of law (may be a detriment)
- Focus on sanctions, importance of power and coercion
- Does not purport the perspective of a sympathetic participant
Two kinds of rules as per HLA Hart
- Primary– rules directed to citizens
- Secondary– rules told to officials how to identify, modify, or apply primary rules
In order for a legal system to exist, it has to have what according to HLA Hart
Rule of recognition
T/F. According to the positivist perspective, the law is a derivation of social norms, not because its inherently moral, rational, or functional
True
T/F. According to the positivist perspective, Rule or norm must be articulated BEFORE there can be a law of any kind
True
Three essential attributes of law as per the positivist perspective
- Conscious formulation
- Generality
- Authoritative enforcement
Law do not come out naturally, product of formulating laws out of social norms; conscious exercise of authority separate from moral
Conscious formulation
