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Law, Philosophy of | Internet Encyclopedia of Philosophy, Social fact thesis legal positivism

Social fact thesis legal positivism

In The Rules of Sociological Method Durkheim laid out a theory of sociology as 'the science of social facts'. He considered social facts to "consist of representations and actions" which meant that "they cannot be confused with organic phenomena, nor with physical phenomena, which have no existence save in and through the individual consciousness." [1] Durkheim says that a social fact is a thing that many people do very similarly because the socialized community that they belong to has influenced them to do these things. [2]

These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on its merits. Each of them contributes to an understanding of the nature of law. The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.

Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society.

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The Origin and Development of the Interstate Commerce Commission and Its Impact on the Origination of Independent Regulatory Commissions in the American Legal System: A Historical Perspective

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In legal positivism, the assertion that legal validity derives from social facts, either by virtue of being promulgated by a sovereign power to whom people show ...

In the following it will be argued that while the positivist critique makes sense of important practical features of the law, a comprehensive analysis must recognise that the rational demands of the Law are prior to the contingencies of any human legal system. The contemporary Natural Law position espoused by John Finnis is followed, and it is shown that he effectively rebuts two key arguments made in favour of the separability of law and morality.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, analytic jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995, p. 11). Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguish law from non-law.

The English word is based on the Latin maxim jurisprudentia : juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, [5] at a time when the word prudence had the meaning of "knowledge of or skill in a matter". The word may have come via the French jurisprudence , which is attested earlier.


Social fact thesis legal positivism

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Legal Positivism (Stanford Encyclopedia of Philosophy)

Social fact thesis - Oxford Reference

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social fact thesis legal positivism
social fact thesis legal positivism

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