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Legal Positivism

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Thomas Hobbes also founded a contractualist theory of Legal Positivism. Legal Positivism is often described as the view that there is no necessary relationship between law and moral values. Such an understanding of positivism is both unfruitful and far removed from the concerns of the figure most often associated with the origins of the positivist tradition, Thomas Hobbes. For Hobbes, legal positivism represented a decisive break with the intellectual tradition of common law scholarship which could no longer provide a satisfactory account of political authority.

Positivism began, therefore, as an explanation of the basis of law's authority within wider theories of social order: legal rules came to be seen as possessing authority not as the specific outcomes of broader moral precepts, but because they represent definitive, posited solutions to the problems of collective living. Analytical positivism, by contrast, centres upon the possibility of descriptive neutrality: an essential property of law, it is felt, is that ascertainment of its content does not necessarily depend upon moral assessments of the purpose of value of legal rules.

Legal positivism also implies that law is something that can be separated from ethics. On this view it is possible that there are legal rules that have no ethical component, and laws that are positively evil, such as the laws of slavery and segregation. Some natural lawyers argue that even the most pedestrian of laws carry the moral or ethical requirement that, as Samuel Adams said, the State of Nature may be abridged only for the basic maintenance of the greater society. Such order is a moral imperative. Thus, a law requiring driving on the right side of the road indeed has a philosophically moral basis. Not that right is socially preferable to left. But, that right is socially preferable to nothing.

Of course, not all legal decisions are as free of ethical content as this one is. Legal positivism is not synonymous with ethical positivism, or for that matter with moral relativism. It is at least a possible viewpoint that there exists a natural ethical code while maintaining that its translation into law remains local and contingent.The argument of legal positivism is not that ethics is irrelevant to every law; rather, that law and ethics are two different things, two fields that occasionally overlap but whose underlying logic remains separate. The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon.

2 people said this sucked:

  Boss Stewie

Thursday, November 16, 2006 7:03:00 am

uhmm..... somebody say something! QUICK!!!


Saturday, December 22, 2007 10:23:00 am

Hello all!

Very interesting blog!
Believe it or not, I've finally found which theory is right between Naturalism and Positivism and I can demonstrate it loooooooooooooooooooooooooool.

You can read my latest blog short article on this: