Characteristics Of Legal Positivism

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Jurisprudence is a subject area filled with numerous legal theories. One notable theory in this area is legal positivism, which is often subdivided into classical and modern positivism. These concepts shall be in explored in greater depth later but in sum, legal positivism refers to law as man-made and separate from the concept of morality. This essay shall explain and critically evaluate the main features of both forms of legal positivism. Following this, Ronald Dworkin’s concerns with legal positivism, particularly with the role of legal principles shall be explored. Finally some concluding thoughts shall be given.

Classical positivism is most associated with Jeremy Bentham and John Austin. This theory is somewhat inspired by Thomas Hobbes, …show more content…

He rejected its neglect for including morality with regard to the law, arguing it was impossible to separate these two concepts and that morality influenced the legal system through legal principles. Legal principles that were drawn from common law supplemented existing legal rules he argued, acting as an indication and guide towards what the law ought to be. Due to their uncodified status, principles were more adaptable and better positioned to maintain justice over a lengthy period of time. Dworkin also boldly stated that the presence of legal principles indicated that there was one correct outcome to all legal cases; it was simply the task of judges to discover it. What can be drawn from Dworkin is that he believed legal positivism defined the law too narrowly; with the inclusion of legal principles he argued a more inclusive description could be …show more content…

Principles he argued acted not merely as a guide but also as a restraint upon judges; he argued this was crucial to ensure both legal certainty and to reduce the prospect of judges acting outwith their powers for justification. Judges therefore would be expected to weigh in legal principles, as well as legal rules when reaching their judgment. This is a somewhat accurate analysis, particularly when the concept of stare decisis is considered, which is the doctrine where courts of equal or lower standing are bound previous court decisions on similar principles. In practice this binds the judiciary to past legal principles in most cases; Dworkin however failed to account for when judges ought to depart from established principles. In particular where judges feel it would be detrimental to continue to follow past precedent. The following example sets out a case where judges broke with past principle after they felt the existing precedent was

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