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Legal Positivism

Legal Positivism. Austin, Kelsen, Hart. Legal Positivism. Per genus et differentium What is law All law is traceable to a (single) source Legal Validity = the pedigree of the item (command, norm, rule) seeking status as law, or valid as law Separation of the “Is” from the “Ought”

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Legal Positivism

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  1. Legal Positivism Austin, Kelsen, Hart

  2. Legal Positivism • Per genus et differentium • What is law • All law is traceable to a (single) source • Legal Validity = the pedigree of the item (command, norm, rule) seeking status as law, or valid as law • Separation of the “Is” from the “Ought” • Logical, analytical, conceptual- apart from what happens in the world, apart from enforcement

  3. John Austin • Generalcommands from the sovereign backed by force/sanctions or the threat of force (for non compliance) • Commands • General • Sovereign • Force or Sanctions • The highwayman writ large • Obliged • What is the law, is quite different from what it ought to be.

  4. Hans Kelsen • Pure Theory of Law • Separation of Is from Ought • Norms – ought statements (an act of will authorized by another pre-existing norm) • Grundnorm (presupposed) (validity and unity) • Logical Stenciling • If X, then Y ought to do Z • Delict • Directed at Officials • To impose some evil, some sanction

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