Legal Positivism Essay

In the discussion of legal philosophy there is the ever occurring question “what is law”, many legal philosophers have attempted to answer such question but I believe the one philosopher to change the field entirely was John Austin. John Austion was the first modern legal positivist (and possibly founding father) to present a contemporary theory of law. Austin’s main interest in the philosophy of law was differentiating the reality of the law from the normative or moral merit of law. This in sense is scientific approach because positivism is an empirical approach to philosophy, which extends it use to the scientific method and other fields. None the less my goal here is not to present an all-out account of Austin but to present a comprehensive evaluation of legal positivism and present the issues I have found prominent in legal validity, whether it be with Hart, Austin any other theorist. However I feel it may be necessary to start with the earliest theorist on the subject John Austin.

In continuation, underlined in John Austin’s Lectures on Jurisprudence, he described an imperative theory of law, which he said laws are commands from the sovereign to guide the manner of society’s members (Freeman 86). Of the reason why law’s in his account are imperative. Austin’s narrative say’s that the ruling body of the law may be a group or an individual who society has a habit of obedience towards, or is habitually obeyed. More so the sovereign holds no promise but is obeyed through society’s self-interest, which may be fear of sanctions. And most importantly the sovereign obeys no one else. Austin however deems that under this system there are differences between unconstitutional and illegal acts. So in short if the sovereign were to disr...

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...nd the legal positivist approach has come to be the satisfactory for the meanwhile. But as it stands that question still has room for improvement, but maybe more so the question of legal positivism has a need for revision. Plenty of legal positivist have reach their own consensus, formed their own factions, and possibly escaped the two main forms of debates, but I feel legal positivist discussion can be aided simply by time, trial and error. As the world becomes more connected and new nations are formed, additional theorist will approach the debate. In time they will need to craft their own augmentations to the discussion, and develop their own legal systems. Inevitably we will see a continuing stream of knowledge contributing to the comprehensive debate, answering questions with an entirely different perspective, independent on dominating themes present today.