Legal Positivism
Canda, Lucille Ann
Carreon, Joseph Valerian
Timtim, Kimberly Loide
Viernes, Gerald Paul
Nature of Law
Legal Positivism
There are a lot of theorists who pioneered in the concept of Legal Positivism.But among them are two leading theorists who mainly contributed on this idea and further argued on each other’s respective opposite views. One of which is John Austin, who holds that legal positivism is the nature of law which deals with the existence and contents of law based on social facts and not on its merits. He also established the command theory of law which maintains that all laws are but commands. Another positivist in the name of H.L.A Hart, who seems to be in contradiction of Austin’s concept of Legal Positivism, included in one of his writings entitled The Concept of Law argues that there is no logical necessary connection between law and coercion, or between law and morality. Austin’s social fact theory which contends that the existence of law is based on social facts and not on its merits, which discusses about the authoritative value of social standards and not on how just, wise, efficient or prudent it may be. His second theory which is the Command Theory, deals with law as a coercive method for social control which demands both the attention and compliance of those to whom its regulations are directed. For him commands are divided into two concepts: (1) signification of desire which implies there should be a desire first before a command can be established; (2) ability to inflict evil or harm for the non-satisfaction and non-compliance of a command.
Another theorist who is considered the most astute critic in legal philosophy goes by the name of H. L. A. Hart, who opposes Austin’s Command Theory by saying that not all laws are coercive and necessarily entails evil or harm because there are laws which are sanction-free. He also believes all legal systems have “Primary Rules” and “Secondary Rules”. By “primary rule” Hart means a rule
Carreon, Joseph Valerian
Timtim, Kimberly Loide
Viernes, Gerald Paul
Nature of Law
Legal Positivism
There are a lot of theorists who pioneered in the concept of Legal Positivism.But among them are two leading theorists who mainly contributed on this idea and further argued on each other’s respective opposite views. One of which is John Austin, who holds that legal positivism is the nature of law which deals with the existence and contents of law based on social facts and not on its merits. He also established the command theory of law which maintains that all laws are but commands. Another positivist in the name of H.L.A Hart, who seems to be in contradiction of Austin’s concept of Legal Positivism, included in one of his writings entitled The Concept of Law argues that there is no logical necessary connection between law and coercion, or between law and morality. Austin’s social fact theory which contends that the existence of law is based on social facts and not on its merits, which discusses about the authoritative value of social standards and not on how just, wise, efficient or prudent it may be. His second theory which is the Command Theory, deals with law as a coercive method for social control which demands both the attention and compliance of those to whom its regulations are directed. For him commands are divided into two concepts: (1) signification of desire which implies there should be a desire first before a command can be established; (2) ability to inflict evil or harm for the non-satisfaction and non-compliance of a command.
Another theorist who is considered the most astute critic in legal philosophy goes by the name of H. L. A. Hart, who opposes Austin’s Command Theory by saying that not all laws are coercive and necessarily entails evil or harm because there are laws which are sanction-free. He also believes all legal systems have “Primary Rules” and “Secondary Rules”. By “primary rule” Hart means a rule