Introduction
Han Kelsen’s critique of John Austin’s Pure Theory of Law, has attracted attention among many legal theorists. This essay will begin by discussing John Austin’s Legal positivism. It will then discuss Kelsen’s Pure Theory of Law. This essay will also distinguish between John Austin’s theory and Han Kelsen’s pure theory.
Legal Positivism
With a long history and broad influence, legal positivism, is discussed in mediaeval legal and political thought. Its roots lie in the conventionalist political philosophies of Hobbes, however, Jeremy Bentham, wrote its first full elaboration, that Austin adopted, modified and popularized (L. Green, 2003, Stanford Encyclopedia of Philosophy, Legal Positivism). It is sometimes associated with the …show more content…
It has become the brand of a logical and rational, fact based process that arise in a moral vacuum. Thus, positivists would argue, Hitler’s laws regarding the mistreatment of Jews, may be abhorrent, contrary to any standard morality; but they remain lawful, merely because it has been approved by the legally constituted government. They make no claim of such laws, being obeyed, however, they simply argue that it is a debate, free from the legislative process.
Natural law, however, claims that laws should evolve from fundamental moral premises that are generally accepted as the foundation of proper relations between people in a righteous society (R. Darroch, 2017, What is the difference between legal positivism and natural law). Thus, any law that hinder such principles are taken to be unjust, contrary to the needs of a peaceful society.
These two philosophies do not necessarily contradict each other. For example, positivists would not dismiss the validity of laws from a moral perception, only if they are constructed by a sovereign power. They do however, merely oppose to subjective morality or ethical principles that develop and promulgate a
Han Kelsen’s critique of John Austin’s Pure Theory of Law, has attracted attention among many legal theorists. This essay will begin by discussing John Austin’s Legal positivism. It will then discuss Kelsen’s Pure Theory of Law. This essay will also distinguish between John Austin’s theory and Han Kelsen’s pure theory.
Legal Positivism
With a long history and broad influence, legal positivism, is discussed in mediaeval legal and political thought. Its roots lie in the conventionalist political philosophies of Hobbes, however, Jeremy Bentham, wrote its first full elaboration, that Austin adopted, modified and popularized (L. Green, 2003, Stanford Encyclopedia of Philosophy, Legal Positivism). It is sometimes associated with the …show more content…
It has become the brand of a logical and rational, fact based process that arise in a moral vacuum. Thus, positivists would argue, Hitler’s laws regarding the mistreatment of Jews, may be abhorrent, contrary to any standard morality; but they remain lawful, merely because it has been approved by the legally constituted government. They make no claim of such laws, being obeyed, however, they simply argue that it is a debate, free from the legislative process.
Natural law, however, claims that laws should evolve from fundamental moral premises that are generally accepted as the foundation of proper relations between people in a righteous society (R. Darroch, 2017, What is the difference between legal positivism and natural law). Thus, any law that hinder such principles are taken to be unjust, contrary to the needs of a peaceful society.
These two philosophies do not necessarily contradict each other. For example, positivists would not dismiss the validity of laws from a moral perception, only if they are constructed by a sovereign power. They do however, merely oppose to subjective morality or ethical principles that develop and promulgate a