Legal Positivism

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In defence of the school of legal positivism
Introduction
Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather than some unwritten rules or personal opinion of judges that may be based on some ethical and moral principles. In this regards, the separation of law from morals as maintained by positivist thinking may contribute to the neutrality and objectivity …show more content…

According to Hart, law consists of a system of rules that everyone has an obligation to follow. However, not all pieces of legislation in Namibia for example, can be described as a commands which are set by sovereign to the subject alone. In this regards, one of the Hart’s biggest achievements was to show the need to detach positivism from the command theory, thus Harts sees the law as a system in which rules control those who hold power.

As for Hart, a law is a combination of primary and secondary rules. The primary rules are those which lay down standards of behaviour and are rules of obligation, that is, rules that impose duties. While the secondary rules which are power conferring enable the legislators to modify their policies according to the needs of the society. Furthermore, Hart, points out that the official legal system and especially Judges who have to apply the law, treaty law as authoritative. They are guided by legal rules which is to say that they follow them because they are rules, they conform to legal rules not because they fear the consequences of not doing so but because they willing accept them. According to Hart the rule of a system will be clear; the job of the judge is simply to apply the rules to a set of facts …show more content…

Certainty is a cardinal principle of law and the positivist approach provides for legal certainty as it states what the law is as opposed to what ought to be. A positivism approach to law can be traced in the case of Kausea v Ministry of Minister of Home Affair & Other, where Namibia's High Court considered whether comments made to the media by Kauesa contravened regulation 58 (32) of the Police which prohibited a member of police to comment unfavourably in public on the administration of Namibian or any other government department and rendered such comment an offence. In deciding the case, the High Court referred to provisions of various legislations and applied the law as it is stated. Kausea was found guilty of contravening the legislation, thus judgement in Kausea embraced the Hart theory that that the Judge treats legislation as an

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