Legal positivism is one of the main philosophical theories about the nature of law and is characterized by two theses: (1) the existence and content of law depend entirely on social facts (e.g., facts about human behavior and intentions), and (2) there is no necessary connection between law and morality – specifically, The existence and content of a law does not depend on its merits or disadvantages (for example, whether it meets the ideals of law). of justice, democracy or morality or not). The theory has enjoyed a large number of adherents since it was first articulated by Jeremy Bentham in the 18th century, and has undergone significant changes and developments since then. Legal positivism is now accepted by most English-speaking legal philosophers, although theories of natural law, its natural opponents, continue to challenge the fundamental claims of positivism. This approach is often praised for bringing precision, simplicity and clarity to legal thinking. There is clear, unambiguous and scientific terminology. It eliminated many misconceptions that had obscured the meaning of legal terms. But the legacy of the movement lives on. Positivism expounded the basic concepts that still prevail in modern legal systems. Even in modern democracies, we see the flow of law emanating from political superiors to the people, we also see the importance of laws, rules and regulations as well as the discretion of jurists.
In Austin`s analytical approach, his ambition is to gain a precise and deep understanding of the fundamental concepts of legal argumentation. He chooses to exclude any outside influence or even history and gives himself complete access to the first principles of law as it is, regardless of his “goodness” or “wickedness” or “moral dignity”. This approach leads to the reading of the “law as is” or “positum” (rather than the ideal law), also called “positive law”, advocated by Austin in his theory of legal positivism. Now we have a good idea of what Austin`s analytical approach is, which gives us the theory of legal positivism. No jurist argues that the systemic validity of the law establishes its moral validity, that is, that it should be followed by subjects or enforced by judges. Even Hobbes, to whom this view is sometimes attributed, demanded that the law should actually keep the peace, otherwise we owe it nothing. Bentham and Austin, as utilitarians, believe that such questions always revolve around consequences, and both recognize that disobedience is therefore sometimes fully justified. Kelsen insists that “jurisprudence does not prescribe that the orders of the Creator of the Constitution be obeyed” (1960 [1967:204]). Hart believes that the law can produce a prima facie duty of obedience, based on fairness, but also limited by equity – there is therefore no obligation to make laws unjust or foolish (Hart 1955: 185-186).
Raz goes further, arguing that there is not even a prima facie obligation to obey the law, not even in a just state (Raz 1979 [2009: 233-249]). The particular accusation that positivists believe that the law must always be respected is unfounded. In fact, Hart`s own view is that excessive compliance with the law is more easily reconciled with theories that imbue him with moral ideals and enable him to The same order, in the minimal legal system, only officials of the legal system take the internal position on the rule of recognition, which gives them the power to and enforce the rules. The mere existence of a belief in officers that they have the right to legislate cannot create an obligation for others to comply with their orders, any more than the presence of a believer of an armed person that he is entitled to give orders creates an obligation for the victim to obey those orders. Hart`s minimal legal system is no less convincing than Austin`s legal system. The law does not necessarily meet the conditions under which it is adequately evaluated (Lyons 1984:63; Hart 1961 [2012: 185-186]]. The law must be just, but it must not be; it should promote the common good, but sometimes it does not; It was supposed to protect moral rights, but it can fail miserably. This is what we can call the thesis of moral fallibility. The thesis is correct, but it is not the exclusive property of positivism. Thomas Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a blatant misunderstanding of ideas such as Thomas Aquinas` assertion that “an unjust law does not seem to be a law at all” could suggest otherwise. The law can be essentially moral in character while being morally deficient.
Even if each law always delivers justice (formal justice; Justice according to the law), this does not mean that he does justice. Even if every law has a prima facie right to be applied or followed, it does not follow that it has such a right.