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legal positivism

Subject: Law

An approach to law that rejects natural law and contends that the law as laid down (positum) should be kept separate – for the purpose of study and analysis – from the law as it ought ...

legal positivism

legal positivism   Reference library

John Finnis

The Oxford Companion to Philosophy (2 ed.)

Reference type:
Subject Reference
Current Version:
2005
Subject:
Philosophy
Length:
88 words

... positivism , intending to oppose natural law theory , denies any ‘necessary connexion between law and morality’. Central theses among a loose cluster: (1) law is definable and explainable without evaluative predicates or presuppositions; (2) the law (e.g. of England now) is identifiable from exclusively factual sources (e.g. legislation, judicial precedents). Some versions deny that there is knowable moral truth. Most understand positive law as products of will, some as imperatives. Prof. John Finnis See also law, positive . Gerald J. Postema , Bentham...

legal positivism

legal positivism   Quick reference

A Dictionary of Law (10 ed.)

Reference type:
Subject Reference
Current Version:
2022
Subject:
Law
Length:
166 words

... positivism An approach to law that rejects natural law and contends that the law as laid down ( positum ) should be kept separate—for the purpose of study and analysis—from the law as it ought morally to be. In other words, a clear distinction must be drawn between “ought” (that which is morally desirable) and “is” (that which actually exists). The theory is associated especially with the thought of Jeremy Bentham ( 1748–1832 ), John Austin ( 1790–1859 ), H. L. A. Hart ( 1907–1992 ), and Hans Kelsen ( 1881–1973 ), who differ from one another in...

legal positivism

legal positivism   Reference library

Australian Law Dictionary (3 ed.)

Reference type:
Subject Reference
Current Version:
2018
Subject:
Law
Length:
148 words

...legal positivism The theoretical approach to law as law (rather than a branch of moral or political theory), which focuses on what law is : law as posited (put). Initially law was seen as the sovereign’s command, backed by the ability to bring force to bear to impose it ( enforcement ); law can be found by examining the sources of law ( see also legal formalism ) and jurisprudence is largely descriptive and morally neutral. Legal positivism remains the dominant theory of law, and is understood as being in opposition to natural law theory. It has...

legal positivism

legal positivism   Quick reference

A Dictionary of Law Enforcement (2 ed.)

Reference type:
Subject Reference
Current Version:
2015
Subject:
Law
Length:
144 words

... positivism An approach to law that rejects natural law and contends that the law as laid down ( positum ) should be kept separate—for the purpose of study and analysis—from the law as it ought morally to be. In other words, a clear distinction must be drawn between ‘ought’ (that which is morally desirable) and ‘is’ (that which actually exists). The theory is associated especially with the thought of Jeremy Bentham (1748–1832), John Austin (1790–1859), H. L. A. Hart (1907–92), and Hans Kelsen (1881–1973), who differ from one another in important respects...

legal positivism to 1970

legal positivism to 1970   Reference library

The New Oxford Companion to Law

Reference type:
Subject Reference
Current Version:
2009
Subject:
Law
Length:
918 words

... positivism to 1970 From the late eighteenth to the mid‐nineteenth centuries, the utilitarian philosophers Jeremy Bentham and John Austin developed an influential theory of law which is known as ‘legal positivism’. Rejecting the idea that law derives its authority from God, or from some metaphysical conception of nature or reason—so‐called ‘natural law’—Bentham and Austin argued that law is essentially man‐made: it is a command issued by a political superior or sovereign, to whom the populace is in a habit of obedience. This early positivist conception...

legal positivism since 1970

legal positivism since 1970   Reference library

The New Oxford Companion to Law

Reference type:
Subject Reference
Current Version:
2009
Subject:
Law
Length:
769 words

... positivism since 1970 Two disputes about the relation between law and morality have dominated recent discussion of positivism, both deriving from issues raised in Hart 's The Concept of Law (Oxford: Clarendon Press, 1961 ). According to Hart, the law is a social institution which, through the operation of its system of rules, provides guidance to both officials and citizens. It is a kind of social instrument, or technology, and as such may be used for good or evil; the fact that the Nazi legal system promoted many wicked ends did not mean it was any...

legal positivism

legal positivism  

Reference type:
Overview Page
Subject:
Law
An approach to law that rejects natural law and contends that the law as laid down (positum) should be kept separate – for the purpose of study and analysis – from the law as it ought morally to be. ...
The Principle of Movement in the Structure of Islam

The Principle of Movement in the Structure of Islam   Reference library

Muhammad Iqbal

Liberal Islam: A Sourcebook

Reference type:
Subject Reference
Current Version:
2022
Subject:
Religion
Length:
11,677 words
Publisher:
Oxford University Press

...a set of simple legal principles which, like the twelve tables of the Romans, carried, as experience subsequently proved, great potentialities of expansion and development by interpretation. The Nationalist theory of state, therefore, is misleading inasmuch as it suggests a dualism which does not exist in Islam. The Religious Reform Party, on the other hand, led by Said Halim Pasha [1863–1921; Ottoman Grand Vizier, or prime minister, 1913–1916], insisted on the fundamental fact that Islam is a harmony of idealism and positivism; and, as a unity...

Islam and Modernity

Islam and Modernity   Reference library

Fazlur Rahman

Liberal Islam: A Sourcebook

Reference type:
Subject Reference
Current Version:
2022
Subject:
Religion
Length:
11,833 words
Publisher:
Oxford University Press

...to human attitudes; it is consciously or unconsciously the source of all values and of the meaning we attach to life itself. It is therefore all-important that this very ground of formation of our attitudes be as much informed as possible. Positivism may be negative enough to dismiss it as “meaningless”; yet positivism had rendered great service to a genuine metaphysics by exploding the empty thought shell in which the greatest human minds used to incarcerate themselves. Metaphysics, in my understanding, is the unity of knowledge and the meaning and...

46 The History of the Book in Latin America (including Incas, Aztecs, and the Caribbean)

46 The History of the Book in Latin America (including Incas, Aztecs, and the Caribbean)   Reference library

Eugenia Roldán Vera

The Oxford Companion to the Book

Reference type:
Subject Reference
Current Version:
2010
Subject:
History, Social sciences
Length:
6,881 words
Publisher:
Oxford University Press
Illustration(s):
2

...was accompanied by the creation of larger numbers of *public libraries (the prime example was in Argentina, where the reformer Domingo Faustino Sarmiento founded more than 100 public libraries after 1868 ). Toward the last decades of the 19 th century, the influence of positivism encouraged the production of national bibliographies—of which the works by the Chilean Medina about all the Spanish-American countries are the foremost examples—and monumental national histories, such as the five-volume work coordinated by Vicente Riva Palacio entitled México...

law and morals

law and morals  

Reference type:
Overview Page
Subject:
Philosophy
Legal philosophers have debated three views about the connection between legal and moral truth—between what the law is and what it should be.One view—legal positivism—insists that legal reasoning is ...
John Finnis

John Finnis  

Reference type:
Overview Page
Subject:
Philosophy
(1940– ).Legal philosophy has been influenced by his assault on standard oppositions between natural law and legal positivism.Oxford jurisprudence tutor from 1967, Professor of Law and Legal ...
social fact thesis

social fact thesis  

Reference type:
Overview Page
Subject:
Law
In legal positivism, the assertion that legal validity derives from social facts, either by virtue of being promulgated by a sovereign power to whom people show obedience (John Austin's view ...
separability thesis

separability thesis  

Reference type:
Overview Page
Subject:
Law
In legal positivism, the assertion that law and morality are separate and distinct, and that legal validity is not dependent on or necessarily constrained by morality. Hart and Coleman take ...
conventionality thesis

conventionality thesis  

Reference type:
Overview Page
Subject:
Law
In legal positivism, the assertion that social facts give rise to legal validity, drawing authority from social convention.
positivist sources thesis

positivist sources thesis  

Reference type:
Overview Page
Subject:
Law
The view in legal positivism that law's existence and content can always be found by reference to its sources, so that there is no need to turn to moral argument ...
analytical jurisprudence

analytical jurisprudence  

Reference type:
Overview Page
Subject:
Law
A branch of legal positivism that attempts to provide analytical tools by which the law and legal concepts are most accurately and rigorously described. It involves the examination of legal ...
lex iniusta non est lex

lex iniusta non est lex  

Reference type:
Overview Page
Subject:
Law
(Latin, unjust law is not law)The maxim that raises the philosophical question of whether one is bound by seriously unjust laws. legal positivism (in particular Hart) rejects the maxim ...
legal theory

legal theory  

Reference type:
Overview Page
Subject:
Law
The philosophical analysis of law and legal systems. It attempts to bring consistency to the myriad complexities of law and answer analytical questions such as ‘What is law?’ and ‘How ...
Classical Legal Theory

Classical Legal Theory  

Reference type:
Overview Page
The phrase “classical legal thought” refers to a structure of beliefs about both public and private law that dominated the thinking of American lawyers and judges from roughly 1880 to ...

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