Legal Positivism Analysis

Tuesday, August 31, 2021 8:49:46 PM

Legal Positivism Analysis



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Positivist vs Naturalist

At the turn of the 20th century, the first wave of German sociologists formally introduced verstehende sociological antipositivism, proposing research should concentrate on human cultural norms, values, symbols, and social processes viewed from a resolutely subjective perspective. For the antipositivists, reality cannot be explained without concepts. The interaction between theory or constructed concepts and data is always fundamental in social science and this subjection distinguishes it from physical science.

Durkheim himself noted the importance of constructing concepts in the abstract e. Through the work of Simmel, in particular, sociology acquired a possible character beyond positivist data-collection or grand, deterministic systems of structural law. Relatively isolated from the sociological academy throughout his lifetime, Simmel presented idiosyncratic analyses of modernity more reminiscent of the phenomenological and existential writers than of Comte or Durkheim, paying particular concern to the forms of, and possibilities for, social individuality. His sociology engaged in a neo-Kantian critique of the limits of human perception. Antipositivism thus holds there is no methodological unity of the sciences: the three goals of positivism — description, control, and prediction — are incomplete, since they lack any understanding.

To protect society's poorest and weakest members, many states began drafting legislation that established a Minimum Wage and maximum working hours for various classes of exploited workers. This legislation was part of the U. Progressive movement, which reflected many of the realists' concerns. The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the Fourteenth Amendment of the U. The realists argued that the free-market system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the employment-at-will doctrine, which permits an employer to discharge an employee for almost any reason.

These laws, the realists asserted, promote the interests of the most powerful U. Some realists only sought to demonstrate that law is neither autonomous, apolitical, nor determinate. For example, jerome frank , who coined the term legal realism and later became a judge on the U. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what he or she ate for breakfast.

Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. Legal Realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases. Since the mids, this theme has been echoed by the Critical Legal Studies movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic prejudices. For example, feminist legal scholars have pilloried the Supreme Court's decision in Craig v. Boren , U. Gay legal scholars similarly assailed the Supreme Court's decision in Bowers v.

Hardwick , U. The Supreme Court's decision in Lawrence v. Texas U. Other realists, such as Roscoe Pound , were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurisprudence in the United States. According to Pound, the aim of every law—whether constitutional, statutory, or case—should be to enhance the welfare of society. Jeremy Bentham , a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society.

Bentham's theory, known as Utilitarianism , continues to influence legal thinkers in the United States. Law and economics is one school of thought that traces its lineage to Benthamite jurisprudence. This school, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics exponents, such as richard posner , each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange something they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind.

This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society. Another school of thought Bentham influenced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities.

Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a "grab bag" of "anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intuition, and induction" to reach the appropriate balance Posner , Pragmatism, sometimes called instrumentalism, is best exemplified by Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards.

The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialogue between the positivist and natural-law schools of thought. This dialogue revolves around the classic debate over the appropriate sources of law. Positivists maintain that the only appropriate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law.

These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspirational, and may not be legitimately consulted by judges when rendering a decision. Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition.

Depending on the particular strain of Natural Law , these principles may be derived from theology, moral philosophy, human reason, historical practice, and individual conscience. The dialogue between positivists and naturalists has a long history. For many centuries, historians, theologians, and philosophers distinguished positivism from naturalism by separating written law from unwritten law. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor Justinian I a. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transcended the written law promulgated by human beings. Prior to the American Revolution, English philosophers continued this debate along the same lines.

English political thinkers John Austin and Thomas Hobbes were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and police force. In his Second Treatise on Government , Locke established the idea that all people are born with the inalienable right to life, liberty, and property.

Locke's ruminations about individual rights that humans possess in the state of nature prior to the creation of government foreshadowed Jefferson's Declaration of Independence. In , the Declaration of Independence announced the self-evident truth that "all men are created equal" and are "endowed by their Creator with certain inalienable Rights," including the right to "Life, Liberty and the pursuit of Happiness. Both positivism and naturalism have had an enormous influence on how U. The institution of African—American Slavery , which was recognized by the U.

Constitution and legalized by legislation passed in the South prior to the Civil War —65 , was attacked by abolitionists who relied on higherlaw principles of religion and conscience to challenge the moral foundations of human bondage. Following World War II , the Allied powers successfully prosecuted German government officials, industrialists, and military leaders in Nuremberg for committing Genocide against European Jewry, even though the Nazi regime had passed laws authorizing such extermination.

The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law. Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or natural law.

Historical events, like the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views. Yet, historical events shape both morality and law. Positivists were also realists. The difference is that the post-positivist critical realist recognizes that all observation is fallible and has error and that all theory is revisable. In other words, the critical realist is critical of our ability to know reality with certainty. Where the positivist believed that the goal of science was to uncover the truth, the post-positivist critical realist believes that the goal of science is to hold steadfastly to the goal of getting it right about reality, even though we can never achieve that goal!

The post-positivist also believes that all observations are theory-laden and that scientists and everyone else, for that matter are inherently biased by their cultural experiences, world views, and so on. This is not cause to give up in despair, however. That is, post-positivism rejects the relativist idea of the incommensurability of different perspectives, the idea that we can never understand each other because we come from different experiences and cultures. Most post-positivists are constructivists who believe that we each construct our view of the world based on our perceptions of it. Because perception and observation is fallible, our constructions must be imperfect.

So what is meant by objectivity in a post-positivist world? Positivists believed that objectivity was a characteristic that resided in the individual scientist. Post-positivists reject the idea that any individual can see the world perfectly as it really is. We are all biased and all of our observations are affected theory-laden. Our best hope for achieving objectivity is to triangulate across multiple fallible perspectives! Thus, objectivity is not the characteristic of an individual, it is inherently a social phenomenon. We never achieve objectivity perfectly, but we can approach it.

The theories that survive such intense scrutiny are a bit like the species that survive in the evolutionary struggle. They have adaptive value and are probably as close as our species can come to being objective and understanding reality. Clearly, all of this stuff is not for the faint-of-heart. But, in the end, I tend to turn pragmatist on these matters. Philosophers have been debating these issues for thousands of years and there is every reason to believe that they will continue to debate them for thousands of years more.

Those of us who are practicing scientists should check in on this debate from time to time perhaps every hundred years or so would be about right. We should think about the assumptions we make about the world when we conduct research.

Positivism is closely related to reductionismin that both involve Legal Positivism Analysis belief that "entities of one kind Main articles: The Exclusionary Rule and Critical theory. But she might also believe to the contrary that her life would go better if she lived in a more perry v kendricks society. The Exclusionary Rule, we seem to Argumentative Essay On Teen Driving left in the Reflective Essay: My Weakest Point In English Class dialectical Legal Positivism Analysis. Byboth Moore Legal Positivism Analysis Russell had abandoned their propositional realism—Moore in The Exclusionary Rule of a realistic philosophy Contemporary Leadership Approaches common sense benjamin franklin inventions, Russell in favor of a view he developed Reflective Essay: My Weakest Point In English Class Ludwig Legal Positivism Analysis called logical atomism. Before we Legal Positivism Analysis this directly, however, we must say a word about Gottlob Frege.