Natural Law Vs Positivism Essay

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Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

Legal positivism has a long history and a broad influence.

The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H. Legal positivism's importance, however, is not confined to the philosophy of law.

It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars.

For example, an overwhelming number of cultures have taboos against incest.

Modern evolutionary biologists argue that these taboos are rooted in the natural laws of genetics, because incest or inbreeding is likely to increase the frequency of deleterious recessive genes.

The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.

Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.

Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized.

For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law.


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