Legal positivism , legal positivism is to recognize as law only the norms of positive law and reduce any right to the norms in force in a given epoch and in a given society , regardless of whether this right is fair or not.
Researchers identify three main versions of legal positivism: statist , sociological and normativist .
Content
Etatist version (legism)
According to the etatist version, law is represented as a kind of autonomous discipline, identified with the will of the state, the expression of which such right is. In such a situation there should be no conflicts between the law and the state, which is its sole source, the evolution or mutation of which entails the corresponding changes for the law. The right is reduced to the level of state attributes and often turns into arbitrariness of the authorities or the policy of force.
Positivist doctrines often derive from the uncertainties generated by a variety of positive rights and the notion that any idea of the just, if the “immutable” and “universal” epithets are applicable to it, turns out to be artificial.
So, in the XVI century, Jean Bodin , theorist of the idea of absolute monarchy , and in the XVII century Bossuet , who praised the power of kings, began to link the right with the supreme power of the monarch, subjecting the latter to the requirement to observe "divine and natural laws".
In contrast, Machiavelli first of all asserted that the state and law are in no way subordinate to natural law or morality from the moment when the question of the interests of the state arises, the ruler should not hesitate in choosing means that would later be justified by success.
T. Hobbes linked the concept of social contract with the concept of absolute power: as a result of a social contract designed to ensure order, people recognize the right of the legislator to an absolute monarch whose laws are everywhere, since they serve the common interests, even if they contradict divine will.
Subsequently, the idea of state positivism was supported in the writings of Hegel . Trying to reconcile the contradictions of history and the uniformity of reason and neutralize the opposition of the real world and (ideal) thought with the help of dialectics, Hegel sought to identify the rational and the real, recognized the primacy of the state and explained the law through realized fact and by force, in a word, he identified law with by the state.
Like Hegel, the German jurist Rudolf Yering saw the only source of law in the state; emphasizing the role of coercion as an inalienable property of a legal norm, he recognized only positive law, which only the state can pay respect to, through compulsory influence.
In modern jurisprudence, the theory of legal positivism has been developed, which is based on the principles of legal regulation in accordance with the historical laws of the functioning of a politically organized society, as well as the division and cooperation of labor as the basis of self-preservation and state progress. In Russia, this concept was substantiated by Professor Sergey Drobyshevsky .
Sociological version
Supporters of sociological positivism consider the fundamental principle of the right relationship . From their point of view, law is the real order of social relations; a law with greater or lesser adequacy fixes the rules that people adhere to in their relationships, and gains life only when it is realized in them [1] . The sociological version explores law as a real social phenomenon, using the methods of positivistic sociology .
Regulatory version
The normative version differs fundamentally from the statist one using the notion of a norm as an initial concept. The state is considered as a phenomenon derived from legal norms.
See also
- Theory of Imperatives