Legal Positivism In The Modern Society

CHAPTER - 1

RESEARCH METHODOLOGY

RELEVANCE OF THE TOPIC –

Today also the theory of legal positivism is a leading one. It is of the view that law is a social construction. But criticism of the same has always been there. A large number of people and philosophers think that it is too metaphysical and irrelevant in lieu of real life concerns.

The reason that a law is just, wise, efficient, or prudent doesn't give an ample justification for considering it to be the actual law.

But different situations demand different manner in which the law should be implemented. This is where the theory of positivism comes in. According to positivism, laws are nothing but postulates i.e. a matter of fact of what has been posited (ordered, decided, practiced,

OBJECTIVE OF STUDY –

The main focus of the study is to see that whether the theory of legal positivism in relevant in the modern society.

RESEARCH QUESTION/HYPOTHESIS -

Is legal positivism relevant in the modern society?

LIMITATIONS OF RESEARCH –

 The research is based on secondary data.

 The facts and views in the given research are contradictory.

 To prove the relevance of positivism one needs facts and evidence which this research

Its forerunner is the old political philosophy and the term was introduced in medieval legal and political thought. Its most important base lies in the conventional political philosophies. These Philosophies were given by great thinkers such as Hume and Hobbes. But the real credit for elaboration goes to Jeremey Benthan (1748 – 1832). His works were adopted y Austin, who later edited and popularised them.

EVOLUTION

These above mentioned great thinkers were of the view that “law is the command of the sovereign backed by force”. This belief of theirs lasted for the next century and dominated the England’s philosophical reflection of law and the legal positivism.

But this theory (law is the command of the sovereign backed by force) lost its gravity and influence by the middle of twentieth century. Its prominence had shifted from the legal institutions to courts that is the law applying institutions. Its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most eminent characters who contributed to this modified and revised theory of positivism are Hans Kelsen (1881 -1973) from Austria, H.L.A.Hart and Joseph Raz. But they have contrasting