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Sunday,20 August,2017

Positivist Legal Theory

The question of the character of law is primarily a simple one, although it presents a diversity of argumentation to make it an academic favourite and a thought-provoking topic of debate. Positivism is the term describing the school of legal thought that follows that law is an authoritative, binding, regulatory construct.  It holds at its core the idea that law is enacted as an authoritative statement of how society must behave.

Positivism

Positivism rejects the concept of any connection with morality, and suggests that there is no room for subjective consideration of the law – the law is, with no room for negotiation.  Positivism has been criticised, particularly in Germany, as a means of affording tyranny and extremism to enter mainstream politics.  It is said that the general concept of accepting and enforcing the law by virtue of its status allows unjust laws enforcing prejudice and discrimination respect by virtue of their enactment, placing an indefeasible trust in the legislature.

As compared to other legal theories, positivism has gathered a great deal of respect and support across the world, making it one of the most prominent considerations of the nature of law.

Positivism places strength on the rules as they are laid down, on the premise that the process of the legislature is the time for challenge and interpretation.  Although this may generally be the case, it does throw up some problems in relation to the practical consequences of certain enactments, which reflect better with experience the level of effectiveness.

Moral Considerations

Another feature of the positivist movement is that rather than be guided by moral considerations, the law can be used in certain circumstances to determine what is right and what is wrong, on the basis of its status as in accordance with or against the law.  Again this causes problems that have formed the basis of much academic argumentation in the area.

One of the main criticisms of positivism as a theory came in light of the linguistic considerations of HLA Hart, a leading international legal philosopher.  He stated that the positive law is far from fixed in nature, for the simple reason that language is not fixed.  For example, the famous scenario offered for this point is a sign in a local park stating ‘no vehicles allowed‘.

This is by no means a fixed and definitive statement of the law, because ‘vehicles‘ can be taken to mean a broad range of things.

For the most part it will be fairly obvious what falls within the scope – no cars, vans, trucks or trains would be permitted.  But what about skateboards?  Bicycles? Are these covered within the definition of vehicles? There is no way of knowing from the text exactly what is intended by the law, so to positivism in this strict sense is flawed. Rather, a more sophisticated approach is required, which allows the law to be read in the light of pragmatic and policy considerations.

This makes positivism more palatable as a concept, and strengthens its validity at the heart of legal philosophy.

Positivism is only one in a series of mainstream legal theories which satisfy the rational and logical requirements of academics and practitioners alike.  Its intellectual sophistication sets it apart from the more basic natural law theory, although it is by no means an utterly definitive set of beliefs.  All in all, this is an area of study that is rapidly developing, producing new and more complex arguments with every empirical text.

Positivist Legal Theory

This Article Was Written By

ISMAIL N is the 'de facto' owner and editor-in chief of DuluLainSekarangLain.Com. A Human Resource practitioner in his normal daily life and consummate blogger in his free time. He is addicted to coffee and Manchester United. Most easily accessed via his Twitter account.

Ismail N

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  • Nana Reply

    Assalam tuan,
    Saya dibayar haji bulanan. Sekiranya saya diminta bekerja pada rest day, jumlah working hours adalah 8 jam (normal working hours) dan saya akan menerima 1 kali gaji harian. (1 × ORP). Adakah itu bermaksud saya akan menerima 1 + 1 kali gaji harian? Bermaksud OT + dan sehari gaji basic?

    May 5, 2017, 4:44 pm
  • izan Reply

    Salam, saya hendak bertanya,saya bekerja di sebuah pasaraya 9 tahun cuti tahunan saya 18 hari. Baki cuti tahunan tnggal 7 hati lagi, saya mohon cuti tahunan 4 hari untuk bulan 12 .2016 manager luluskan 1 hari saje, masaalahnya cuti tahunan tak boleh bawa ke tahun depan. Adakah betul manager tolak permohonan cuti saya.

    December 1, 2016, 11:34 am