Legal positivism

Legal positivism refers to a doctrine in the philosophy of law and legal theory that the validity of legal norms is their positive setting ( " codified law "; normative legal positivism, such as Hans Kelsen ) and / or their social effectiveness ( sociological positivism, for as Eugen Ehrlich, HLA Hart) returns. This means that a necessary connection between law and justice is denied.

The contrast to the legal positivism is the history of science, the theory of natural law, the prescriptive subordinates the current law on positive scales and / or deductively derived from them ( divine law, human nature, reason ). On legal positivism refers also correcting the legal ethical doctrine of Radbruch 's formula, which also not considered " intolerable injustice " standards as the law if they are set positive and socially effective. Wrong so will not therefore be right because it is legalized by state law - or after a famous saying: "If injustice is rightly, resistance becomes a duty " In the history of ideas close to legal positivism legal realism, and especially in the United States is Scandinavia has its about time same origin.

Newer opposites and further developments to legal positivism that refer to this reference, but not the classic dichotomy of natural law vs.. Fall legal positivism, in particular, the system theory of law (eg, Niklas Luhmann) and different discourse theories of law ( see, eg, Jürgen Habermas).

In addition to the epistemological positivism as a scientific theory of practical legal positivism is the term most often (also: legal positivism ) associated: a legal application is then described as positivist if it is based only on the given law and against extra-legal principles is impermeable. A counter- flow within the legal doctrine is the sociological jurisprudence and the legal hermeneutics that asks for the specific social conditions of legal interpretation.

Demarcation

See also: Natural Law / demarcation to legal positivism

Legal positivism is a rather theoretical, not an ethical or moral theory. As such, legal positivism tries to answer the question "what is law? " Or " what standards are right? " Almost all legal positivists, especially modern theorists who attribute the analytic tradition, however, emphasize that these issues are independent of the question, whether legal citizens a moral obligation. This is highlighted as of J. L. Austin:

" The existence of a rule of law is one thing; correctness or otherwise of another. Whether it is or not, a question; whether it corresponds to an underlying ideal is another. An existing law is also the law, if we do not like or if it deviates from the criterion by which we orient our approval or disapproval. "

Norbert Hoerster, a prominent German legal positivist, throws critics of legal positivism understand that these are often wrong, and ascribe to him theses, the legal positivists themselves not represented. Hoerster claims in particular that legal positivists rarely or never defend the following theses:

• The laws thesis, according to which law is exhausted in positive laws. But positivists may well recognize customary law and other sources of law as law, Hoerster.
• The Subsumtionsthese, according to legal interpretation takes place neutral, and judges merely apply higher standards.
• The relativism thesis, which claims that all ethical standards are subjective and relative. But, as argued Hoerster to identify law with social facts is compatible with the recognition of objective moral standards.
• The obedience thesis have to provide legal obedience by the citizens.

The concept of positive law

The concept of positive law ( " jus positivum ") stands (set of lat ponere, positum set) since ancient times for " put" right. Positive law arises from the discretion of the legislature and is therefore not legitimated by a reference back to the divine law ( divine law) or by binding to all people equally comprehensive and of course zukommendes law ( natural law ).

The concept of positive law learned in the course of the 19th century, an appreciation as a basic option of the entire legal justification, which is primarily should go about organizing the coexistence by consensus within the state functional. The settlements proved in the legal discussion of the 20th century as problematic as after the Second World War, judges had to answer for right sayings from the time of National Socialism and based their decisions on the positive law.

The term " applicable " law is not ado with the "positive " - ie set by the state - law equated. That requires that bids are legally binding, ie reliable chance organized enforcement have (see Legal validity ), and that it legitimately, ie are justified (see legal validity ). This " advantage " may for example also obtain common law in all legally valid variants to be "state set " right is only contrived represented.

Kelsen: dualism of being and ought

In the philosophical and jurisprudential tradition, the distinction between is and ought plays an essential role. David Hume had pointed out that Sollenssätze can not be derived from being records. Immanuel Kant developed his theory of knowledge in dealing with Hume, in which he made the distinction between theoretical ( " speculative " ) and practical reason for the foundation of his considerations. Neo-Kantianism and his followers in jurisprudence, particularly Hans Kelsen, joined to Kant and sharpened the contrast between is and ought to continue. They built on the basis of this separation a dualism of law and morality.

According to Kelsen's Pure Theory of Law is the sphere of being, ie the factual, strictly separated from the sphere of obligation, ie the normative. From this separation led Kelsen from the postulate that law have to deal exclusively with the legal norms. The analysis of the behavior related to standards he regarded as an object of sociology. Kelsen wanted to create a closed, based on a basic standard system of rules that should be "clean" of all aspects of the sociological reality. This premise led Kelsen to the so-called " separation thesis ", the conceptual law and morality as parts of two independent systems. Justice is an aspect of morality, that is a original philosophical problem, and therefore not subject to the law. Law could rather be any content that insert themselves into an ordered system, and see the effectiveness of coercive effect.

Kelsen tried to solve the problem of legal validity on methodologically reflective manner on the basis wertrelativistischer premises. The basic standard and the idea of a legal benching, so a hierarchical order between conditional and conditional norms, like him Adolf Merkl had first formulated, should thereby ensure coincidence of normativity and facticity.

The categorical separation of is and ought and the goal of a purely descriptive detection of positive legal systems, the distinction between prescriptive and descriptive legal norms legal rules play a central role. This means that between standard setting and standard description will be strictly distinguished. The descriptive, thus only descriptive, legal sentences make statements about the prescriptive, ie prescriptive legal norms, which are in turn based on specific acts of will. Also in the distinction between validity and effectiveness of the legal system and its norms, the dualism of being and ought reflects. Within the validity of a norm is understood their specific normative character, so their existence in the sphere of obligation. Contrast, effectiveness is the actual efficiency in the world of being. Since the validity of a norm because of their underivability from the sphere of Being can always follow only from a different, higher standard, creates a regress, which ends only on the basic standard. However, these standards apply only if they are used and compliance. Effectiveness is therefore a condition of validity, but not the application itself (see legal validity ).

Hard: the primary and secondary rules

H.L.A. Hart, one of the most important legal philosopher of the 20th century, developed the legal positivist doctrine further based and accrual of Kelsen's Pure Theory of Law. This development can, as the Gustav Radbruch, as a legal-ethical normativity designate (see also Radbruch formula ). Positive law requires therefore due to its freedom -limiting effect of a moral justification, if it wants to be just right.

As Kelsen goes hard on the assumption that there is no logical or necessary connection between law and morality. So he denies the natural law theory of the necessary substantive terms of the right to the moral retribution with theoretical consequences. However, unlike Kelsen, he said that law and morality are not next to each other without any mutual influence. Morality have influenced the development of legal standards in effect and vice versa there is a repercussion of right to morality.

Hart criticized Kelsen's view that every legal norm is a sanction norm, ie based on coercion. Developed by John Austin in the 19th century thesis that law consists of commands supported by threats, one called the imperative theory. According to Hart, it is an unacceptable simplification of the interactions between law, coercion and moral standards to be classified either as a sanction norms or moral commandments. Such a narrowing certain forms of legal norms are not to explain. These hard numbers about enabling rules, ie those norms that confer competence to set valid acts. Also, the difference between such legal rules would blurs who want to bring about a certain human behavior and therefore sanction the opposite behavior and those that are legal under certain conditions provide for sanctions, without intending thereby a change in human behavior.

Hard differs in sharp contrast to the imperative theory of primary and secondary rules. The primary standards of behavior he is facing a class of secondary rules that determine the way in which one can make sure of the primary rules of engagement. The secondary rules specify also determine how primary rules introduced and abolished, how it changes and how to determine the fact of their violation conclusively.

Significant legal positivists

Of legal positivism for the first time by the English jurist and social reformer Jeremy Bentham (1748-1832) was systematically developed in his posthumously by HLA Hart published writing, " Of Laws in General " from 1782. Among Bentham's students won John Austin ( 1790-1859 ) with his book The Province of Jurisprudence Determined from 1832 for the dissemination of legal positivism a special meaning. Important representatives in the 20th century were Hans Kelsen, Georg Jellinek, Félix Somló, Gerhard Anschütz, Richard Thoma, Adolf Julius Merkl, Gustav Radbruch and HLA Hart. Among the most prominent current representatives of legal positivism include Joseph Raz and Norbert Hoerster.

During the Weimar period, the positivist legal theories have been criticized in the so-called methods of dispute the Weimar constitutional theory, especially by Hermann Heller, Rudolf Smend, Erich Kaufmann and Carl Schmitt.