Talk:Legal positivism

Introduction

Currently the introduction is

"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 significant attack from Ronald Dworkin."

As someone who knows nothing about the topic, this introduction does not help me at all. Considering google is also now using the first sentence as a feature when searching topics, it only highlights the largely esoteric nature that the contributors to this article have taken. I'm sure I sound demanding, but I believe the article would be so much better if the introduction outlined at least roughly what Legal Positivism IS and not who developed it. — Preceding unsigned comment added by 210.54.34.40 (talk) 10:05, 22 January 2015 (UTC)

Problem

The sentence which states there is no connection between "law ethics, hence marality" makes no sense. Indeed it is not a complete thought. I had hoped to figure out how to correct it but the idea itself is so obscured by the poor language that I do not know what is being expressed. I have a few suggestions: there is no necessary connection between law and ethics. But then what of this "hence, morality" part? What does it mean? That morality itself comes from the disconnect between law and ethics? Could someone please correct this, it hurts my brain to look at it?

Alexy, POV

It is far from a certainty, and definitely far from an undisputed fact, that 'freedom is of obvious ethical significance', which the article without quoting any other source specifically stated before I modified it slightly to say 'according to Alexy...'. I thought I should report this edit in the discussion section. 213.112.137.177 15:22, 27 August 2006 (UTC)

Plagarism

The entire page appears to be copied from [this website:=http://www.answers.com/topic/legal-positivism] Either that, or they copied you.

Yoda921 07:23, 27 February 2007 (UTC)Yoda

If you look at the blue bar, you'll see answers.com gives credit to wikipedia. They do this all the time. Danielx (talk) 10:26, 25 November 2007 (UTC)

Against merging "laws without ethical content"

The fact that laws can be devoid of ethical content (which is different from claiming that laws can be devoid of an ethical basis) is not disputed by natural lawyers. It is not therefore a tenet of legal positivism that distinguishes it from its rivals. Hence the article "laws without ethical content" should NOT be merged to this article on legal positivism.

Simple facts, no?

Aren't the two points in the introduction simple facts? The first seems to derive from the definition of the word "law" itself. Is there an opposing school of thought which contradicts either one of these? Danielx (talk) 10:31, 25 November 2007 (UTC)

Also against merging "Laws without ethical content"

The article, "Laws without ethical content" defines such a law as "one that does not proscribe or mandate an act because of the act's moral or ethical value, but for some other reason." Positivism expresses no view on the motivation behind laws. It simply holds that law is a human posit, and does not flow DIRECTLY form morality itself. Humans may posit laws because of our moral convictions or for any other reason. But, according to positivism, these laws are still human posits. Don Loeb (talk) 01:07, 17 December 2007 (UTC)

Contemporary Practice?

Are there U.S. supreme court judges who would be considered Legal Positivists? I came to this page from the entry on Holmes, and wonder how this legal philosophy is used in today's world. Who uses it? How prevalent is it taught and practiced in the legal profession at large, and in the top courts of the U.S.? Also, is it strictly American, or is it also a philosophy in other cultures? (added this note on Oct. 23, 2008)

"Of course" non-NPOV

The article currently claims "Of course, in the Republic of the United States, the citizens have granted through the Constitution authority and power to the government to determine and enforce the laws." I can see multiple objections to this statement - which is disputed and non-NPOV as well as cn - including:

• Objections to the social contract theory in general, e.g. from anarchists.
• Objections to the historical claim, e.g. was the constitution a compact among the states or among the citizens.
• P.S. Objections to the claim that the United States government actually operates according to either the constitution or a social contract.
• It is, of course, a claim of certain political philosophies and not one that all people would regard as true, of course, or even coherent. 71.191.213.197 (talk) 22:25, 14 February 2009 (UTC)

Image copyright problem with File:1kelsen.jpg

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• That there is a non-free use rationale on the image's description page for the use in this article.
• That this article is linked to from the image description page.

This is an automated notice by FairuseBot. For assistance on the image use policy, see Wikipedia:Media copyright questions. --08:10, 2 March 2009 (UTC)

Exclusive and inclusive positivism

Should the section on positivism and ethics be edited to describe exclusive and inclusive positivism? I'm not sure if it corresponds with the "hard" and "soft" versions currently there; to be honest it is presently very vague. I think describing the necessity of the connection between law and morality would be better in terms of exclusive and inclusive positivism, which would account for much of the present literature on the topic, and also sound much better. 218.186.12.217 (talk) 11:52, 8 March 2009 (UTC)

Section heading

There's a section heading called "Legal positivism and strict interpritivism". Aside from the spelling of "interpritivism", what is this supposed to mean? There's a philosophy of strict constructionism, but it's not clear that this is what the section is about, as the article needs more clarity in its prose and better development. --Michael Snow (talk) 20:11, 28 April 2009 (UTC)

Actually, you're raising a bigger issue than you might know. To beggin with, strict interpritation is synonamous with textualism, a belief that one should consult the existing text and the existing text only when understanding its meaning. The larger issue is that this view is not held by all legal positivists. I 'think' this reading would be something advocated by Joseph Raz or someone of his ilk. The section drastically needs to be rewritten to note the importance of the one for the other, but to more clearly state their unnecessary connection. Piratejosh85 (talk) 21:27, 28 April 2009 (UTC)

Using English syntax

From the section: Legal validity and the sources of law

"Why the tendency is critical is for that the claim simultaneously opens the possibility to directly access to the constitution by those who have not direct legal interest so that the possible vein claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way of legal reasoning in term of more nomothetic (rule-making) approach to a case in turn. To the point, legal positivim and legal realism are similar to each other except to recognizing the source(s) of law and jurisprudene. The reason why legal positivism is popular to are largely depending on its assimiliation to the modern normal science and its acceptance of social class theory else."

Can someone with better knowledge than I of the intended meaning of this section clean up the phrasing so that it is understandable? — Preceding unsigned comment added by 69.143.141.15 (talk) 07:00, 19 November 2011 (UTC)

Hart as the most prominent positivist?

The claim made early in the article that Hart is the most prominent positivist may be based on a parochial assessment. Although I am more sympathetic to Hart's version of positivism than Kelsen's, I must acknowledge that outside the Anglo-American world - and, alas, there are very many scholars outside the Anglo-American world - Kelsen is more widely studied than Hart. — Preceding unsigned comment added by 177.142.70.108 (talk) 17:21, 15 July 2012 (UTC)

Time problem: 19th century is not 1700s

The first and second lines of the article tells that Jeremy Bentham and John Austin are 19th century writers. Wrong. They are 18th and 19th (jsut John Austin) century writers as they wrote in the 1700s (John Austin wrote in 1800s). I suggest we modify the text with 18th and 19th century.

128.163.8.28 (talk) 17:12, 1 May 2013 (UTC)

Has been changed (though not by me) to "eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin". Seems ok now. Wikiain (talk) 06:41, 4 May 2015 (UTC)

References

A paragraph without meaning

The problems with this paragraph are so serious that I will make my comments inline:

Legal positivism was focusing[*Why the past continuous verb? Why not simple past or even better, the simple present "focuses"?] on how to prevent possible conflict between[*what is the object of this preposition? Like this: Between "A and B" where A is "concurrent rule(s) and successive norm(s)" and B is "or foundation of law(s)". Or is it something else.] concurrent rule(s)[*What is this? Does it indicate a singular or a plural or just laziness. It pollutes the whole paragraph.] and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to[*Usually we would say "equates with" in this context] the authority to abolish a law(s). Why the tendency[*This is new. What tendency is this?] is critical is that the claim[*Ditto for the claim] simultaneously opens the possibility for direct access to the constitution by those who have no direct legal interest so that a possible vain claim could be readily abused by some political movement(s)[*Ditto] which is not regarded as normal work(s)[*Ditto] of any law system. However, it is also true that legal positivism contributes to improve[*This should be the participial verb form, improving.] the way(chain)[*What? I don't know what a "way(chain)" is.] of legal reasoning in terms of a more nomothetic (rule-making) approach to a case in turn[*in turn?]. To the point[*What point?], legal positivism and legal realism are similar to each other except in recognizing the source(s)[*Ditto] of law and jurisprudence. The(A)[*What is this?] reason why legal positivism is popular (to whom?)[*What is this?] is its assimilation of modern normal science and its acceptance of social class theory.[citation needed]

The errors in syntax and grammar and the repetitive use of stylistic shortcut(s), suggest to me that this has been written by a non-native speaker of English. If that is the case I suggest that that person write a more discursive explanation on this talk page that might express better what he or she is trying to say. Then, perhaps, we can tighten it up and produce a coherent paragraph. As it stands I have no idea what it means.

But first a little advice. A sentence's grammatical structure should reflect the logical structure of the underlying thought. Common English usage is to use the words "and" or "or" interchangeably to join the two words or phrases that comprise the object of the preposition "between". But, if the second item is a compound then you don't have a choice. You must write "between A or B and C" not "between A and B or C". The first means what you want (I think) but the second means the opposite.

Furthermore, there is no requirement that sentences be long and complex. Legal documents are usually written in a complex manner in order that there be no misunderstanding of the document's intended meaning. This has the effect of demanding a very close reading; no one wants to be hanged on a comma. But judges and lawyers are paid to do that kind of reading; you reader is not. You can afford to be less precise and easier to read. And you can always add another sentence to clarify. Clarity is the the goal.

Also, if you are going to introduce some new word or concept, make sure the meaning is clear. If there is tendency you have to say what it is. If there is a claim you have to state it. If it isn't absolutely clear from the nearby context, clarify it.

Finally, if you absolutely must indicate that a noun is to be taken as both singular and plural, then do so grammatically. For example, "If it is the case that a sentence (or sentences) is too complicated to understand, break it into pieces." Notice that in the following dependent clause it's not necessary to repeat the plural construction. If you have to change the structure of the whole sentence to make it grammatical, then do so.It's clearer that way.75.157.135.57 (talk) 08:04, 31 August 2013 (UTC)

What IS legal positivism?

I added a definition to the lede by extending a sentence: "holds that law is constructed from social facts, without regards to the merits of such law." This is a paraphrase of the Stanford source.

Feel free to improve it, but the article needed some definition of what the term means, not just its historical context. I avoided using the term "social constructs" and just stuck with the wording from the source. 2603:7081:1603:A300:8448:8888:CC8F:BC90 (talk) 12:00, 28 March 2024 (UTC)