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Legal Positivism Defined • ‘the belief in a strict separation should be maintained between the law as it is, and the law as it ought to be. The task of courts, then is to pronounce the law, as found in legislative texts and previous court decisions, and not to pronounce on questions of political morality’– Henk Botha
Positivist Approaches To Law • Reject Metaphysics • Epistemology: Strictly Empiricist that are observable • Law as a human construct: versus the natural law approach which suggest that law is controlled by a set of metaphysical rules. Also the social thesis of law ties in with this, because it supports the idea that law is a social fact. ‘what the law is in no way depends on what it should be’ • Command theory: law is a set of commands that are formed by the will of the sovereign state. (command v rule)
Positivism’s three themes: • Epistemological: theory of knowledge • Empiricism: only observable facts (sensory perception) • Social: law as a social fact • Command: law as a set of commands
Austin and Bentham • They did away with the natural-law tradition. • They believed in a supreme legislature, command theory as the nature of law and utility as the measure of good law. • What can be empirically established is that humans felt pain and pleasure • Pre-political or natural rights lacked an empirical or factual foundation, therefore could not serve as the foundation of law. • How would they have felt about our Constitution then?
Product of human action Nature in control of man Idea of good life shared by all Morals are laws Result of metaphysical ‘rules’ Man can control nature through an understanding of science. The question about what is good and what not is not for the courts to decide. Law and morals are seperated. Positivism v Natural Law
Command External aspect Validity from the will of the supreme state power. They both believed that the law was a set of commands, and not a system of rules. They saw law as the expression of the political power of the sovereign. Parliamentary sovereignty Rule Internal aspect The validity of a legal rule to another legal rule. Law is a system in which rules control everybody in the state, including those who hold power. ‘rule of law’ Cosntitutionalism Austin and Bentham v Hart
