Austin vs Hart

Legal positivism is the thesis that the existence and content of law depends on social occurrences and not on its merits. The English jurist John capital of Texas (1790-1859) formulated it thus The existence of law is one thing its merit and demerit another. Whether it be or be not is one doubt whether it be or be not conformable to an assumed standard, is a different enquiry. (1832, p. 157) The positivist thesis does not say that laws merits atomic number 18 unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or effective systems exist.Whether a society has a legal system depends on the battlefront of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials confess as authoritative for example, legislative enactments, judicial decisions, or social customs. The f act that a policy would be just, wise, efficient, or prudent is never capable reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or ill-judged is never sufficient reason for doubting it.According to positivism, law is a weigh of what has been posited (ordered, decided, practiced, tolerated, etc. ) as we might say in a more(prenominal) modern idiom, positivism is the mentation that law is a social construction. capital of Texas thought the thesis simple and glaring. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.