Legal Positivism free essay sample

A Positivists World: Morality Holds No Place Close to the Heart Islamic law, often known as Shariah law, occasionally contrasts with manys view of what is moral or just. However, when viewed under the light of positivism, all law is divorced from a system of ethics. Legality is not, inherently nor intentionally, compliant with a code of behavior. Law is, as it is created by the ruling class, designed to benefit those in power. Morals and sentiment do not play a role in the government, nor the rules that the government establishes. Legal positivism is a school of thought in the science of law or jurisprudence from the Latin term juris prudentia, which means the study, knowledge, or science of law; or in the United States, it is more broadly associated with the philosophy of law. Positivism was largely thought up of by Jeremy Bentham and John Austin; however, once established the idea of positivism was greatly refined and perfected by H. We will write a custom essay sample on Legal Positivism or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page LA Hart. Harts The Concept of Law caused a re-formation of the positivist belief and its interaction with the idea of law and the other principal theories of law. Harts main points that created the modern idea of positivism today are a disagreement of John Austins theory that law is the command of the ruler backed by the threat of punishment. However, what Hart brought up is that not all law is coercive or a command but that some allow those to create contracts or other legal documents. Hart brought to the table that one could argue to be the most important feature of our modern day legal system the idea of primary and secondary laws, or a system in which laws can be judged and overseen by itself. Primary laws are those that provide the rules or guidelines for our society, for example its illegal to steal. While secondary laws outline the reasons of the law and the way in which it should operate, this is called the rule of recognition and states the criteria of validity of a law, it also outlines the problem of rigidity of rules, the third issue the secondary rules address is how to resolve legal disputes. In the Islamic culture, law and state are not divided- Instead, they influence each other quite deeply, each extending greedy fingers into the other. Muslim law contains guidelines and rules for all aspects of life; how to pray, how to treat the dead, punishments, crimes, and even business transactions are all contained within it. There are several major schools of law or jurisprudence for both the Sunni and the Shii facets of Islam; these two being the largest sects of the religion. The Sunni and the Shii are commonly accepted as the biggest factions of a religion that dominates the Middle East. However, the Sunni dominate the Shii in matters of education on jurisprudence and law- Over time, the way these principles should be taught have crystallized into four major schools. Though both factions observe the same religions the main differences between the two boils down into very simple matters on a disagreement on who should have absolute religous authority or the authority of the imam. The other being the manner in which certain laws are interpreted or as it could be seen level of orthodox practices . One could argue that in Islamic culture Shii are generally the more extremists or orthodox of the both. We need to work around the basis that because laws, under the view of legal positivism, are not inherently nor even remotely tied to morality and therefore can not be judged on average moral standards. A law that says â€Å"Unless the wife is ill, the wife is bound to give a positive response to the sexual desires of her husband† is hardly surprising at all. In fact, because Islam is a patriarchal society, the law was almost inevitable if not already generally accepted within the targeted population of the law. Because ethics are not remotely tied to legal issues, a binding set of laws that benefit leadership is an impossibility to avoid, like tax breaks for the rich. The law in question, if viewed in a different light, could be taken as unethical because it turns a blind eye to familial sexual abuse, particularly from husband to wife. In doing this, it would even subtly approve such actions. Although, when examining the legitimacy or reasoning behind the law you have to examine and judge it based upon the system it was made and social norm of both current times and pas. However, with a positivist outlook, it is clear that such a law was nearly inevitable. Islam, as a highly patriarchal society, provides a community where this is easily accepted and integrated and only affects those of â€Å"Afghanistans Shii Muslim community, which makes up about 20% of its 30 million population†. Because morals do not apply to whether laws are just, it would be impossible to avoid acts meant solely to benefit the controlling faction of the group. Therefore, it is ridiculous to imply that a set of ethics and morals can be applied to the rules leadership chooses to enforce especially when within the culture itself those do not find any reason to protest or create any upheaval; because even within a country that suppresses a right to voice and opinion in many ways it cannot be stopped if enough opposition presents itself. Legal positivism is just the idea that we can identify existing law without necessarily judging on its legitimacy or the morality of justness. If that was all it was, the general public can obviously recognize law, even if it is unjust law regardless of its stance within the general population or it morality; but there is the fact that law can be unjust law. This is especially so when law is made by legislative decree. One could argue that there is a something more to legal positivism, and it is this aspect that can arguably have a connection to logical positivism.