Legal Positivism: Hart, Austin, Bentham

Topics: Islam, Law, Sharia Pages: 4 (1220 words) Published: December 7, 2011
A Positivist's World: Morality Holds No Place Close to the Heart

Islamic law, often known as Shariah law, occasionally contrasts with many's view of what is moral or just. However, when viewed under the light of positivism, all law is divorced from a system of ethics. Legality is not, inherently nor intentionally, compliant with a code of behavior. Law is, as it is created by the ruling class, designed to benefit those in power. Morals and sentiment do not play a role in the government, nor the rules that the government establishes.

Legal positivism is a school of thought in the science of law or jurisprudence from the Latin term juris prudentia, which means "the study, knowledge, or science of law"; or in the United States, it is more broadly associated with the philosophy of law. Positivism was largely thought up of by Jeremy Bentham and John Austin; however, once established the idea of positivism was greatly refined and 'perfected' by H.LA Hart. Hart's "The Concept of Law" caused a re-formation of the positivist belief and its interaction with the idea of law and the other principal theories of law. Hart's main points that created the modern idea of positivism today are a disagreement of John Austin's theory that law is the command of the ruler backed by the threat of punishment. However, what Hart brought up is that not all law is coercive or a command but that some allow those to create contracts or other legal documents. Hart brought to the table that one could argue to be the most important feature of our modern day legal system the idea of primary and secondary laws, or a system in which laws can be judged and overseen by itself. Primary laws are those that provide the rules or guidelines for our society, for example it's illegal to steal. While secondary laws outline the reasons of the law and the way in which it should operate, this is called the rule of recognition and states the criteria of validity of a law, it also outlines the problem of...
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