The iuspositivism or legal positivism It is part of the studies of the theory of Law. Its main characteristic is the separation of law and morals. In this way, the followers of this current affirm that legal norms are totally independent of their moral interpretation..
This current of legal thought maintains that the application of any legal norm must set aside the notion about whether it is just and unfair. The legal professional must limit himself to abiding by the legislation, without taking into account other considerations.
Legal positivism has been linked since its appearance to the different theories about States. Generally, iuspositivism considers the law as the set of norms established by human beings through the State. The approval of these norms must comply with the legal formalities considered valid by the laws themselves..
Although there are precedents for this type of thinking that even date back to Ancient Greece, it is considered that the most immediate antecedents were authors such as Hobbes or Jeremy Bentham. However, the thinker who established the pillars of this current was Hans Kelsen, already at the beginning of the 20th century.
Since ancient times there have been authors whose vision of law was close to iuspositivism. An early example is found at the beginning of the Republic (about 370 BC), one of the greatest works of the Greek philosopher Plato.
However, the most important antecedents of this legal trend were the works of Thomas Hobbes (1588-1679) and Jeremy Bentham (1748-1832), two English philosophers. The first, in his work the Leviathan, affirmed that only the laws promulgated by a sovereign would allow the human being to abandon nature, without distinguishing whether those norms were moral or not..
Already at the beginning of the 20th century, the Austrian Hans Kelsen laid the foundations of legal positivism understood as a current of thought.
In addition to those already mentioned, many experts consider that the French School of Exegesis, which interpreted the law arising from the Civil Code approved by Napoleon, was the true cradle of legal positivism.
For these authors, the law is circumscribed to the legal code and jurists only have to apply what is written, without creating anything new..
At the beginning of the 19th century, several legal currents emerged in Germany. One of the most important was the Historical School, whose premise was that the law was different depending on the place and time in which it was applied. Thus each community had to create its own codes of justice.
His position defended the primacy of rationalism based on scientific criteria, without morality or the consideration of justice or injustice having a place in the laws.
In addition to Jeremy Bentham, other legal theorists appeared in 19th century England whose works were clear antecedents of iuspositivism, as was the case of John Austin.
These authors considered the law as the way that human beings used to achieve certain ends. For Austin, the promulgation of laws was the responsibility of a sovereign authority, which also had to have the necessary authority to impose them..
The author who laid the foundations of legal positivism was the Austrian Hans Kelsen, in his work Pure Theory of Law, out of 1911.
In this essay, he stripped the right of all moral or ideological considerations, thereby positioning himself totally against the current defending natural law..
Iuspositivism or legal positivism is defined as that current of legal philosophy that maintains that morality must be totally separated from law.
For its followers, there is no type of link, so it would not make sense to judge whether a law is morally just or unjust, but it should only be applied.
Within legal positivism there are different doctrines on some issues. However, almost all of them coincide in considering the law as the set of laws with which the human being is endowed through the institutions that make up a State..
Society, for these thinkers, needs a formal process for the approval of laws to be able to organize as such..
The most distinctive characteristic of iuspositivism is that it does not make any type of moral or social judgment on the approved norms. In this case, the only important thing is the established law and not the possible metaphysical interpretations that may be made..
This implies that any law can be valid, regardless of whether it is considered fair or unfair. The fundamental thing is its function of maintaining order and that its approval has followed the procedures established by the State..
Theorists of this current emphasize the differences between law and morality. The first only deals with the external behavior of individuals and has tools to enforce compliance with the laws.
Morality, for its part, forms part of the autonomous beliefs of each human being. In addition, there is no mechanism that obliges to follow it.
One of the most relevant contributions of Hans Kelsen was his representation of the legal system as a pyramid.
According to this jurist, at the top is a norm that acts as a supporter of the entire system. In this case, Kelsen was not referring to any specific law, but to the belief that the legal order is effective and followed by society.
The following levels of the pyramid are occupied by norms that follow a hierarchical order, that is, the lower levels can never contradict the higher ones..
Within legal positivism there are the following currents:
- Conceptual or methodological legal positivism: its followers affirm that morality and law are separated in a conceptual way, so they can be analyzed in a totally independent way.
- Ideological iuspositivism: it maintains the obligation to obey all the regulations emanating from the law.
- The logical iuspositivism: for this current, the law must eliminate any type of non-scientific and normative element. Even empiricism has to be kept apart, since legal science does not have the task of describing reality or making factual judgments, only applying what "should be".
- Formalism: in this case, the followers of this branch consider that the law cannot be interpreted. In this way, the laws must be applied in accordance with the literal wording approved by the legislator..
- Imperativism: what is important for this current is that the law is directly related to the mandate of the sovereign subject. The State has the legal monopoly of force in order to ensure that the approved norms are complied with..
The main iuspositivist author in his Pure Theory of Law separated this matter from any moral aspect, which contradicted the postulates of natural law.
In addition, he contributed his idea of the existence of a pyramidal legal structure, in which all law emanates from a superior one, although the author could not expressly name the superior legal norm.
Finally, Kelsen affirmed that the rule that governed the rest was international law, so he ended up defending its primacy over national laws. national.
Herbert Lionel Adolphus Hart was a philosopher of law born in Great Britain in 1907. Considered one of the most influential figures in his discipline during the 20th century, the author affirmed the existence of primary and secondary norms.
The former are those that establish obligations, while the latter regulate the powers. Among the primaries are the criminal and civil codes and among the secondary ones there are those that allow judges to carry out their function to parliaments to pass laws.
This author took a position against the definition of a fundamental norm expressed by Kelsen.
For Hart, this primordial normal was the “rule of knowledge”, understood as the recognition by the judges that there are certain norms that meet the necessary characteristics to be part of the legal system.
The Italian philosopher Norberto Bobbio (1909-2004) pointed out three different aspects of iuspositivism.
He called the first of them "methodological legal positivism" and was characterized by being a descriptive method of what was established as law. For the author, iuspositivism required maintaining a morally neutral attitude towards the law, without being influenced by ideological or ethical considerations.
Second, the Italian pointed out the existence of a type of legal positivism related to positive law. In this case, the law was necessarily linked to the State and, without the second, the first could not exist..
The last aspect of the legal positivism established by Bobbio maintains that positive law is fair only by the mere fact of being positive law, regardless of whether it conforms to a moral or belief system..
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