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Legal Positivism
Under the direction of legal positivism understood in law, which advocates limited jurisprudence the task of studying the law in force with the formal dogmatic positions. The emergence of legal positivism refers to the first third of the XIX century and it was associated with the processes of approval of industrial capitalism in Western Europe. A crucial role is played by the processes of formation in the most developed countries of the national market, demanded the elimination of the vestiges of medieval particularism, expanding the scope of legal regulation of public relations and the establishment of a single law for the entire country (Chambers 2011, 2).
On this basis, the early concepts of legal positivism, which was characterized by the idea of the rule of law as a source of law, the identification of legal norms with the requirements of the government, developed. Legal positivism replaced the doctrine of natural law, which prevailed in the legal thought of Western Europe XVII-XVIII centuries. The decisive role in the event of legal positivism played formation processes in the most developed countries of the national market, demanded the elimination of the vestiges of medieval particularism, expanding the scope of legal regulation of public relations and the establishment of a single law for the entire country.
English jurist John Austin (1790-1859), a follower of utilitarianism J. Bentham, put the beginning of theoretical substantiation of the principles of legal positivism. In 1832 he published the book "The Definition of the Scope of Law" - the first part of his lectures at the University of London. Completely his "Lectures on Jurisprudence, or Philosophy of Positive Law" was published posthumously in 1863.
Influenced by the work of Austin in legal science in England and the United States formed a school representative, called analytical jurisprudence (Rumble 1981, 987). The subject of the study of jurisprudence, according to the views of the theorist, is a positive law. Austin did not deny the natural law and evaluative approach to the laws in force in the state but brought these issues beyond the law.
Among the laws that determine human behavior in society, Austin singled out the following types: divine laws (the term seemed to him more preferring and accurate than the natural law) (Rumble 1981, 1008); positive laws of morality, based on the opinions (for example, the laws of honor); positive laws established by the state authorities.
Austin sought to separate in law from adjacent fields of knowledge, to exclude from the jurisprudence issues of ethical and philosophical order. The law deals with the positive law or the laws in the strict sense of the word, without consideration of good or bad (Austin 1832, 156).
Subsequently, these ideas were widely used proponents of legal positivism, stands for differentiation of the theory of law and the rights of science policy as a separate legal discipline. It was assumed that the right theory would deal with applicable law and the rights of science policy would address the issues of improvement of legislation and legal practice in terms of legal ideals, that is, from the point of view of how the right should be.
According to the teaching of Austin, positive law is peremptory decrees or orders of the sovereign state power. Right there is a set of rules established by the political tops; its source is the will of the sovereign. As underlined by Austin, the sovereign is not bound by the new laws, because at any moment can change them - otherwise, it will no longer be sovereign.
The limited government really has right and positive moral (Kramer 1999, 85). In Austin's concept of foundations imperative theory of law have been developed according to which state laws are addressed exclusively to the subservient and cannot limit the will of the sovereign. Proceeding from this Austin denied the existence of constitutional rights as a special branch of the law, stressing that the sovereign cannot enact laws that would impose legal obligations on him.
International law, according to this concept, contains a morality, because there are no mandatory regulations. There is always the connection of morality and law (Gardner 2001, 221). Other concepts of legal positivism became widespread in France, where a complete codification of the first half of the XIX century the law was carried out. The incidence of legal positivism has expanded considerably in the second half of XIX century when the positivist doctrine established in the jurisprudence of the European countries.
Legal positivism has undergone during this period a number of changes. First, the positivists of the second half of the XIX century. We sought to extend the philosophical and methodological support of its concepts, including through provisions of perceived positivist philosophy of Auguste Comte, Herbert Spencer, and others. Dogmatic study of law in such concepts is complemented by the principles of the sociological approach to the study of political and legal phenomena.
Second, followers of legal positivism in the second half of the XIX century refused on many provisions of peremptory law theory and developed the idea of a lawful state of self-restraint. According to this doctrine not only subservient but to the state of positive law regulations are addressed.
In this regard, there has been a trend towards convergence of legal positivism with the concepts of the rule of law and the rule of law. Thirdly, the principles of legal positivism are spreading in the science of international law, leading to the abandonment of the previous exercise, is identified with the right laws of the state.
Over time, the idea of legal positivism has prevailed so-called monistic approach to the right, i.e. the interpretation of international law and national legal systems as the structural components of a single rule of law.
The emergence of legal positivism is associated with the strengthening and improvement of the legal shell developing capitalist relations. In theory, the legal positivism was the basis of formal dogmatic jurisprudence, with its fine development of legal forms of barter, legal regulation of commodity-money and related relations, the accuracy of legal situations, procedures, methods and means of solving possible disputes, issues of legislative technique. Distribution of legal positivism in continental Europe was due to the development of capitalism.
According to Austin, legal positivism includes four elements: order, the sanction of duties and sovereign power, from the right. The essence of the right order of the authorities addressed to the slave under the threat of sanctions in case of non-compliance.
Given this understanding of the right main task of jurisprudence is to analyze the positive, taken by the State laws and other normative legal acts, without going into the assessment contained in these sources of norms from the perspective of good and evil, justice and other moral categories.
The logical conclusion of legal positivism was in the normative theory of Kelsen (1st half of the XX century). Kelsen's theory seeks to describe such a right as it does not do its justification or criticism (Cullison 1985, 69). Lawyers should not be interested in the rights of foreign relations with phenomena such as psychology, sociology, and politics.
Normativism of Kelsen as one of the variants of analytical jurisprudence has had a great influence on the modernization of the positivist doctrine of the right in the XX century (Ratnapala 2009, 58). Under his influence is noticeable, and the doctrine of G. Hart, another prominent representative of analytical jurisprudence. Hart's system is a system of rules (norms), which are divided into primary rules (rules obliging) and secondary rules - rules on rules (rules of recognition, the rules change, and decision rules) (Chambers 2011, 4).
The right (positive law) in its structure, according to Hart, consists of rules (norms), which he divides into primary and secondary. Primary legal rule is a rule obliging. They impose obligations without taking into account the will of the persons concerned. They are connected with the threat of sanctions, as a motif which should deter prohibited conduct.
Secondary legal rules provide a private or public authority. The rules provided by the private authority, give individuals the ability to build their own legal connections with others through contracts, wills, etc. Rights granted public authority, determine the activities in the field of legislation, justice administration.
Secondary rules do not require recipients to behave in a certain way and make it possible for individuals to create rights and obligations under certain conditions. These drawbacks can be overcome by Hart, via secondary rules that operate as rules of the rules. Thus, the remedy for the uncertainty is the introduction of rules for recognition, which determines how the rule should be created so that it can be a rule of law system.
Thus the recognition of the rule in the simplest case can be an authoritatively set list (register) of the primary rules specifying the conditions under which other rules apply. Means anti-static legal system is the introduction of changes to the rules, which authorizes individuals or groups to enter into the legal system and the new rules abolish the old.
The ineffective system of primary rules is overcome by a decision of the rules that give specific instances the authority to establish authority, violated there any primary rule or not. Hart wrote that people give up positions on the basis of which the legal system is the habit of obedience legally unlimited sovereign and replaced it with the concept of the higher rules of recognition, a system of rules authorizing criterion of reality (Hart, Green, Raz, and Bulloch 2012, 73). However, the rejection of force of law-clerk essentially is imaginary, since the only criterion of right and indeed it does not differ from the legal (moral, etc.) rules, according to Hart's concept is to have compulsory sanctions, i.e. coercive rules and the right to the whole.
As it is mentioned above, according to Austin, the right is formed by four elements: order, sanction, duties and sovereign power (Chambers 2011, 14). Considering this understanding of the right main task of jurisprudence is to analyze the positive, accepted by the government laws and other regulatory acts, without going into the assessment of norms contained in these sources from the perspective of good and evil, justice and other moral categories.
Thus, the legal positivism decisively broke with the principles and provisions of the theory of natural law. If the latter recognized human rights and freedoms and demanded their primary indispensable state recognition, the positivists, on the contrary, the only source of law recognized state. Justifying the proposed understanding of the rights and problems of legal science, the positivists were subjected to the harsh and thorough critique of natural rights and preach their theory.
According to the positivists, natural rights are nothing more than assumptions, hypotheses, are a source of confusion of minds. Recognizing the only source of state law in force, positivists have made great efforts to develop legal tools and structures capable of ensuring strict operation of law, the application of coercive measures against offenders, and have achieved in this area significant progress.
Natural law (the right of peoples) which is beyond the limits of the acting law, relates to social philosophy (because it is a right of private interests), political philosophy (because it is a system of public institutions) and diplomatic philosophy (if talking about international relations).
Legal positivism approached the critique of natural law theory of differently than the historical school of law. Unlike the second one, that firstly used a terminological shell of the theory being disproved, legal positivism from the beginning essentially denied the other right, excepting the positive.
Thus, legal positivism was formed at the beginning of the XIX century, when the bourgeoisie is sufficient reinforcing its economic and political position in the period of relatively peaceful development of capitalism and free competition. Its social purpose was to provide the optimum compromise between the bourgeoisie and growing working-class movement.
References
Austin, J. (1832). The Province of Jurisprudence Determined. Ed. W.E. Rumble, 1995. Cambridge: Cambridge University Press.
Chambers, J.B. (2011). Legal Positivism: An Analysis. Undergraduate Honor Theses. Paper 79.
Cullison, A. D. (1985). Morality and the Foundations of Legal Positivism. Valparaiso University, 20 Val. U. L. Rev. 61.
Gardner, J. (2001). Legal Positivism: 5 ½ Myths. 46 American Journal of Jurisprudence, 199-227.
Hart, H. L. A., Green, L., Raz, J., and Bulloch, P.A. (2012). The Concept of Law (Clarendon Law Series, 3 ed.). Oxford University Press.
Kramer, M. (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford: Clarendon Press.
Ratnapala, S. (2009). Jurisprudence. Cambridge University Press.
Rumble, W.E. (1981). Legal Positivism of John Austin and the Realist Movement in American Jurisprudence. Cornell Law Review, Vol.66, Is.5.
