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Legal Positivism
The theory that the existence and validity of law depend on social facts, not on whether the law is morally good.
Separation Thesis
States that law and morality are conceptually separate.
Validity of Law
A law can be morally wrong but still legally valid.
Three Theses of Positivism
Pedigree Thesis, Conventionality Thesis, Separability Thesis.
Pedigree Thesis
The validity of law depends on its source, such as legislatures, courts, constitutions, or rule-making institutions.
Conventionality Thesis
Law exists because officials and members of society accept certain rules as authoritative.
Separability Thesis
Legal validity does not depend on moral correctness.
John Austin - Command Theory
Austin argued that laws are commands backed by threats.
Command
A rule given by a sovereign authority.
Sovereign
The authority habitually obeyed by the population but who does not habitually obey anyone else.
Sanction
The punishment for disobeying a command.
Hart's Criticism of Austin
Hart argued law is more complex than commands.
Primary Rules
Rules that directly regulate behavior.
Examples of Primary Rules
Laws against theft, laws against murder.
Secondary Rules
Rules about how primary rules operate.
Rule of Recognition
A social rule used by officials to determine what counts as valid law.
Examples of Rule of Recognition Sources
Constitutions, statutes, judicial decisions.
Types of Laws
Duty-Imposing Laws and Power-Conferring Laws.
Duty-Imposing Laws
Rules that restrict behavior or impose obligations.
Power-Conferring Laws
Rules that give people powers (for example the power to marry or create contracts).
Dworkin's Criticism of Positivism
Dworkin argued law includes principles as well as rules.
Rules
Operate in an all-or-nothing way.
Principles
Broader moral standards that may conflict with other principles.
Examples of Principles
Fairness, equality, justice.
Judicial Reliance on Principles
Judges often rely on principles when deciding cases.