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Analytical Jurisprudence Essay

4548 words - 19 pages

ANALYTICAL JURISPRUDENCE
(LEGAL POSITIVISM)

Synopsis:

(i) Socio-economic and historical context on which it arose.

(ii) Positivism in Philosophy – the important founder Augustine Cômte.

(iii) Its expression in Law – Analytical Legal Positivism.

(a) Different aspects of Legal Positivism
(b) John Austin
(c) Neo-Positivist Trends
(aa) Hart’s Concept
(bb) Linguistic Trend

(iv) Kelsen’s Pure Theory of Law

(v) General Appraisal and Critique

(1) Socio-economic and historical context

Just before 1848 Revolution, Marx says in the development of Bourgeois class there are 2 phases to distinguish:

(i) One which constitutes support Absolute Monarchy

(ii) The one ...view middle of the document...

Maths becomes important not only to Nsc. But also to Social Science (Statistics) – this had impact on philosophy. On (2) – the development centralized bourgeois state – with highly developed bureaucratic machine. It developed over a process of decades (furnace of revolution) development opposed to Parodual State, based on hierarchy based on an individual as opposed to bourgeois state dependent on a nation. [Marx: Civil war in France] Bourgeois ruler laws take impersonal form as opposed to personal form in feudalism.

POSITIVISM IN PHILOSOPHY

Is a philosophical outlook of a confident bourgeoisie clan that has defeated Feudalism and wants to create its own image. They are not interested on the past and history. They don’t care where they have come from but that they have arrived. They are concerned with “IS” and not “OUGHT”. There is no preoccupation with “Ideal order”. They “are interested of spokesmen on the “IS” to analyze it, classify it. Positivism is abstraction of this state of affairs in philosophy

2. Important Elements of Positivist Philosophy

(i) It bases itself on experience. It rejects on looking at essential nature of things. Look behind nature of the phenomena. The Trust is THAT is and not beyond.

(ii) It claims to stand above Idealism & Materialism

– through experience – that knowledge is possible. Not interested in historical or social method.

Empiricism

The founder of this trend in social science was AUGUSTINE COMTE (1798-1857). Comte is the father of modern bourgeois sociology – He believed you can apply method on Nsc. To social science. You could study science as you study physics (social physics or sociology).

Comte divided human development into 3 states:

(i) Theological State – the important characteristics was that the explanation was to supernatural things – something beyond nature passing through 3 phases:

(i) animism (magic)
(ii) polytheism (several gods)
(iii) monotheism (one God)

According to COMTE this was the characteristic of the society about the middle age.

2. Metaphysical State

Middle Ages to 18th C Europe and the characteristic is that certain abstractions replace God – e.g. human nature, reasons, etc; fictions are created such as social contract, natural rights, equality, etc.

3. Positivist State

This begins with Comte himself – the characteristic is refutation of all metaphysical abstractions and emphasis that knowledge comes empirical knowledge and it is true knowledge and only true science. You are interested on HOW things ARE and not Why. No look at CAUSE only. Description no valuation of appraisal because that is subjective. This ideas of empiricism was very dominant in Industrial Revolution [Lenin: Materialism and Empirico – Idealism]

Positivism made a critique of Religion and metaphysical notions. (Defended order and status quo). But by overthrowing previous philosophies the cleared way for the development of...

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