Positivism In Human Services Essay

3) Introduction

In this assignment the discussion will be on the philosophical approach that the court used to come into decision in the case of Mapodile v Minister of Correctional Services and Others .

Discussion

The judge in this case followed early modern thinking, and focussed more on legal positivists. The early modern philosopher accepted the idea of individualism. Law can no longer be justified by natural law, but could only be justified in terms of the interests of the modern individual . The individual rights are placed at the forefront while the society and community are seen as a threat to the individual. The individual’s rights are protected against the community and society. Legal positivists’ theory is one of the most very important theories. Legal positivism is based on the general theory of positivism. The theory doesn’t indicate good or bad, however it deals with scientific approach to law and social sciences. This is a theory of adjudication. Adjudication is a terms used to describe the study of how judges decide cases. In other words, it does not deal with what legislators do (legislation) or with the specific rules, but with what happens in court cases . Positivism is a theory of knowledge that addresses the question: How do we know? In the pre-modern era

According to this thesis the description of the law or facts must be distinguished from that of morality or values. The law can be described without reference to morality. Law and morality are separated in this thesis. Positive law determines the legal context of the term “rights” and “duties”. To relate to morality when dealing with positivist’s theory, utilitarianism was introduced in order to have a theory of creating legal rules and institutions based not on morality but on the question of whether it maximised happiness and minimised