Course:Law3020/2014WT1/Group R/Positivism

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Positive Law as Reaction to Natural Law Theory

Legal Positivism is a reaction to the Natural Law Theory, as discussed by Thomas Aquinas. Positivists, such as John Austin, argue that moral content is not an essential element of the law; it is rather a separate entity.

Validity of a Law Austin believed that society was governed by three legal entities: (1) God's law, (2) Positive morality, and (3) Positive law.

In order to be valid, a law has to meet certain requirements. It had to be a (1) command, (2) issued by superiors, (3) and backed by sanctions. Legal Positivism, therefore, dictates that law is man made and that morality is not an essential part of it. This stands in contrast to Natural Law theory, in which morality is the dominant aspect of legality.

Modern Legal Positivism - Hart's rule of recognition -> expanding on the idea of radicalism of positivist theory -> what needs to be changed within the law? -> critique