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
Exploring Research Methodologies: Positivism and Interpretivism Before a researcher can initiate a research project, they face the confusion and the range of theoretical perspectives, methodologies, methods, and the philosophical basis that encompasses them all. This seemingly meticulous structure for the research process is in fact aimed toward providing the researcher with a ‘scaffolding’, or a direction which they can go on to develop themselves to coincide with their particular research purposes
This paper will provide a critique of legal positivism through consideration of its origins, principle scholars, theoretical assumptions, limitations. It will include an example of relevancy through the complex and divisive issue of same-sex marriage. Legal positivism is a theory defined as, “a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation and that tries to understand the nature of
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
law in Canada is most comparable with Legal Positivism. After analyzing the purpose of Legal Positivism, the similarities between it and Canada’s legal system become obvious. Both systems exercise the concept of primary and secondary rules, both contain a theory of legal obligation and lastly, both have a theory which answers for judicial interpretation. To understand the relationship between a system of government (such as Canada’s) and legal positivism, one must first understand the purpose of
alternative to positivism. The central claim of legal positivism states that "in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits". Dworkin completely rejects the positivist approach because he believes that "no combination of source-based rules, no matter how broadly construed or how carefully crafted can ground a theory of law". Dworkin is evidently making a big move away from positivism. The first
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
Ayer published Language, Truth & Logic in 1936 when he was only 26 years of age. He was a part of the Vienna Circle; who were notoriously known for their philosophy of logical positivism. Logical positivism is a philosophical theory that holds meaningful only those non-tautological propositions that can be analyzed by the tools of logic into elementary propositions or are empirically verifiable. It therefore rejects metaphysics, theology, and sometimes ethics as meaningless . In Language, Truth &
entrenches them is one of great controversy in the legal community. The legal theories of legal positivism and critical legal studies take particularly opposing analysis and views of the law, as well as how law impacts on society. In order to illustrate my answer, I will draw from the idea of the protection of private property, and the criminalization and subsequent decriminalization of homosexuality. Legal positivism is particularly concerned with the validity of the law, and believes law is valid so long
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
greater fairness and efficiency. On top of respecting these philosophies in their individual realms, we must also recognize how they coincide and what this convergence means to the way in which we live our lives. Works Cited Fuller, Lon L. Positivism and Fidelity to Law: A Reply to Professor Hart. Cambridge, MA: Harvard Law Review Association, 1958. Print. Hart, H. L. A. The Concept of Law. New York: Oxford UP, 1997. Print. Fuller, Lon L. The Case of the Speluncean Explorers. Cambridge
Introduction: In “Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification” by Torben Spaak, he argues that he prefers to have reasons for preferring legal positivist to natural law theory and he also bring ups the laws of normativity. I will argue against a key point in the laws of normativity, regarding legal rights and I will also argue against that we should prefer legal positivist to natural law. Summary: Spaak argues about how there are reasons for choosing legal
basic differences between the two forms of research? Hoepfl (1997) explains it by saying that "phenomenological inquiry, or qualitative research, uses a naturalistic approach that seeks to understand phenomena in context-specific settings. Logical positivism, or quantitative research, uses experimental methods and quantitative measures to test hypothetical generalizations (p. 14)". Custer (1996) also points out that "the qualitative-quantitative dichotomy dates back as early as the 17th century where
The concept of logical positivism, also known as logical empiricism or simply positivism, is a vital one in the realm of the social sciences, having a profusion of influence. Virtually beginning in the 1920s, logical positivism reached a peak around the time of the 1950s and 1960s. The notion revolves around the idea that scientific knowledge is the only form of valid and factual knowledge and focuses on the importance of one’s own phenomena experiences (Stiles, 2017). Although influential, there
Criminological Imagination Book Review Jock Young’s book “The Criminological Imagination” very clearly spells out the author’s feeling that orthodox criminology has lost its way and has been swallowed up into obscurification through bogus, post-modern positivism. Young postulates, the cost of this phenomena is the loss of critical thinking and objectivity in the field of criminology. Young contends criminology can be rescued from obscurity if returning to its orthodox beginnings by reducing the impact
defines her account of scientific knowledge relative to positivist and wholist accounts. Though many regard positivism as offering an untenable account of science, because "no comparable sweeping and detailed philosophical view has replaced it," Longino believes that it still needs to be reckoned with (L1990, 21). Wholists are significant because they have been the greatest critics of positivism. After presenting these accounts, and explaining the difficulties that Longino has with them, I will present
source data collection relies on structured interviews and questionnaires, which many argue do not offer enough fluidity to relate to everyday lives and therefore are not valid research tools (Bryman 2001, p.77). Critics also continue to associate positivism and quantitative methods failing to see that quantitative researchers do not apply the scientific method to all data and can account for influencing variables (Bryman 2001, p.77; Matthews and Ross 2010, p.29). Quantitative methods in the social
Positivism is a research method that developed from the behavioral revolution, which sought to combine positivism and empiricism to politics (Halperin and Heath, 2012: 27). That is to say, this research approach is governed by natural law to observe, understand and to find meaning in the empirical world. This type of research seeks to answer two empirical questions, such as ‘what is out there’ and ‘what do we call it’ (Gerring, 2001: 156). Positivism is only interested in phenomenons that can be
to the Sociological concept of positivism and antipositivism. Positivism is the scientific study of social patterns. This pertains to the use of scientific methods to get a more clear understanding of the natural world. Auguste Comte was the founder of this concept. Comte believed the way that society interacts with individuals using positivism would usher in a new “positivist” age of history. Comte concept of positivism is still relevant today. Since then positivism has been expanded and became
Essentially, criminals were born that way. His theory is basically a hypothesis of biological positivism. Psychological theories suggest that criminal conduct is the product of individual differences in their minds. There are many psychological theories, however they all stem around the beliefs that it is the individual's thoughts and feelings that