|
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H. L. A. Hart, whose work ''The Concept of Law'' caused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law. In more recent years the central claims of legal positivism have come under attack from Ronald Dworkin. Although the positivist position is complex, the central claim of legal positivism is the following: "In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits."〔Gardner, John (2001) “Legal Positivism: 5 ½ Myths,” 46 American Journal of Jurisprudence 199.〕 ==Legal validity and the sources of law== In the positivist view, the "source" of a law is the establishment of that law by some socially recognized legal authority. The "merits" of a law are a separate issue: it may be a "bad law" by some standard, but if it was added to the system by a legitimate authority, it is still a law. The Stanford Encyclopedia of Philosophy summarizes the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction."〔Green, Leslie, "(Legal Positivism )" in the Stanford Encyclopedia of Philosophy〕 Legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Legal positivism」の詳細全文を読む スポンサード リンク
|