Legal Positivism

“ We never know other’s will until it is expressed to us”

Legal Positivism has 5 main ideas:

1. Laws are commands of human being;

2. There is no necessary connection between law and morals ( or 'law as it is' and 'law as it ought to be');

3. The analysis ( or study of meanings of legal concept is worth pursuing) ;

4. the legal system is  a close logical system in which correct legal decisions can be deduced by logical means from predetermined legal rules without references to social aim, policies, moral standard;

5. Moral judgements cannot be established or defended as statements or fact by rational argument, evidence or proof (non-cognitivism in ethics).

there are 2 types of legal positivism:

1. analytical jurisprudence

according to John Austin,

 LAW = COMMAND OF THE SOVEREIGN

the expression of an act of wishing -> the will theory of law

according to Bentham and austin, law exists when population has developed the custom of "obidience" to a certain command. this kind of obidience sets forth the law.

A law is completely enacted only when the words constituting it are so precise that it maybe applied merely with the help of a dictionary.

so, command is the expression of wish and the sanctions are very essential (it has been in everyone's mind). Austin believes that legal norm is not dynamic and basis for legal validity depends on the factual situation.

2. the pure norm theory

according to Hans Kelsen, law should be separated from moral.

Positive law = what the law it is.    Moral = what the law ought to be.

In Kelsen's perspective, law lives in "das sollen" and not in "das sain". It focuses on the norm, not the real conduct. Norms consists of basic norm and individual norm. This pure theory discribes positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed. The legal system is organized in a hierarchical structure.

It is pure because it believes that law has to be clear from non- juridical aspects such as ethics, sociology, politics and history.

According to Kelsen, command is a normative character and the sanctions of law are essential but it follows the norm (casuistic). Legal norm is dynamic and the basic norm depends on the Grundnorm. 

well legal realism states that the legal responsibility is determined by the norm, not by the logical relationship between norm and facts. 

Legal Positivism = Formal Jurisprudence