John Austin and Positivism

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Introduction Positivism is the approach to the study of law which regards valid laws as being only those laws that have been posited, that is created and put forward by human beings in positions of power in society. Generally, positivism rejects the attempt of natural law to link law to morality. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator (sovereign body) or considered as common law or case law. Positivists tried to define law not by its content but according to formal criteria. To John Austin, the distinguishing feature of positive law, and one that sets it apart from ‘positive morality’, is that it is set by a sovereign person or a sovereign body of persons to members of an independent political society wherein that person or body of persons is sovereign or supreme. It is the scope of this essay to explain the philosophical implications of Austin’s proposition by clearly stating his basic contentions and highlighting the reactions from other positivist such as Hart. Philosophical implications of positivism Legal positivism generally comprises an approach to the question of the nature of law, which regards the law’s most important feature as being the fact that it is specifically created and put forward (posited) by certain persons in society who are in positions of power and who then provide the sole source of the validity and authority of such law. The issue raised by the question ‘what is law?’ for legal positivists is essentially a question of fact to be answered by empirical reference to and analysis of objective social phenomena. Only material as can be factually identified as being legally relevant should be taken into account in the analysis, because law is a distinct phenomenon which can originate , exist and be explicable only within its terms, even though it may have some
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