Legal positivism explains law by looking at its social sources rather than assuming that legal validity depends on morality. This lesson introduces the theory's central claims and distinguishes the question of what the law is from the question of whether it is good.
Legal positivism holds that a law exists and has the content it does because of social facts: human actions and practices such as legislation, judicial decisions, and customs. A rule may be legally valid because it was created or recognized through the sources accepted by a legal system.
All flashcards
Legal positivism
The view that law's existence and content depend on social sources, not necessarily on moral quality.
Austin's command theory
A theory that law consists of sovereign commands backed by sanctions.
Kelsen's basic norm
A presupposed foundation that explains the ultimate validity of a hierarchy of legal norms.
Hart's internal perspective
The perspective of participants who treat rules as standards guiding and justifying conduct.
Radbruch formula
The view that a statute yields to justice when its conflict with justice becomes intolerable.
Quiz questions
In Bentham's terminology, what does an expositor do?Answer: Describes what the law in practice is.
According to Austin, what makes a person or body sovereign?Answer: The majority of society habitually obeys it, and it obeys no other human superior.
In Kelsen's account, what is the role of the basic norm?Answer: It serves as the presupposed foundation for the validity of the legal hierarchy.
What is the function of Hart's rule of change?Answer: It provides procedures for creating, altering, or abolishing rules.
How can legal realism overlap with legal positivism?Answer: Both can treat law as a human construct and recognize the importance of legal sources.
Based on the Wikipedia article Legal positivism, licensed CC BY-SA 4.0. Adapted into a summary, flashcards and quizzes.