Legal Philosophy: Executive Legislative Essay

Question:

Discuss about the Legal Philosophy for Executive Legislative.

Answer:

Introduction

Positivism stated the meaning of posit, postulate or firmly affix which establish the existence of any statement. It is a school of jurisprudence of advocates where they present such legitimate sources of law, which are written rules of laws, regulations recognized by the government entity related with administrative, executive legislative and judicial bodies. Legal positivisms are such legal theories deals with the laws that express the will of the authority which create the laws[1]. As per the legal positive perspective, legal rules not only valid but also extract from the moral or natural law because legitimate authority and society enact these accept such morality.

Discussion

People only use laws when they think that application will help them. The principals of laws are made as per the morality of the rules and relevant facts. Law establishes the basic social structures of the society. The great legal philosophers John Austin and Jeremy Bentham who are also known as political thinkers express those existence theory of laws which shows the positivity of the legal theories which are authorized by the court. This existence of the theory has the authorities of the commands of the sovereign because it is only acceptable with the enforcement power and commands through the military and police force[2].

Legal positivism and legal realism are different from each other according the application of the legislations. Law is made as per the need of the human. They construct the law for own benefit and moral rights. When natural rights conflicts with the realistic world, human formed the laws for own benefits. As per the great philosopher Jeremy Bentham, law is expressed will of sovereign. He stated that, the expositors and censors are two different types of people who explained the law in practice and the people who criticized the law. It is already considered that expositors are more acceptable in the society. As per his theory in the legal positivism in this large society, people have the absolute de facto powers where they either obey the laws or they do not themselves similarly obey anyone else. Law protects the moral rights of the human. Law help people to establish, maintain and applicable in the society.

Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by the legislation of justice or humanity; however, it is the way in which the laws have been formed. This includes the views how the judges make new law in deciding cases not falling. Practicing, deciding or tolerating for practices of law can each be consider a way of creating law. Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society[3].

Justin Austin is another great philosopher who criticized and analysis the jurisprudence of law for the existence of the legal positivism. He stated that the moral or fundamental rights and law are completing different from each other. The democratic principles are the basic human rights where courts have involved the principles according the needs[4].

According to those philosophers, the court never ignores the moral rights of human where the constitution stated the statues for the fundamental rights for the human. The legislation gives rights individually for application the law. Individual rights also give equal share for determining the fundamental rights of freedom of communications. However, as per the given statement positivism is sometimes more associated with the idea of legal philosophy is or should be value-neutral. The moral rights and the legal positivism are totally difference as per the legal aspects of the philosopher but they cannot present their existence without each other[5]. Therefore, as per the criticism of the philosophers, law protects the moral rights of the human. Law help people to establish, maintain and applicable in the society for a better future[6].

Conclusion

The application of natural rights is depends as per the use of the law. There are no rights anterior to government. The assumption of the existence of such rights, Bentham says it is the basic theory of the social contract. The individuals form a society and choose a government through the application of certain of their rights. However, this doctrine is not only unhistorical but it does not even serve as a useful fiction to explain the origin of political authority.

Reference

Covell, Charles. The Defence of Natural Law: A Study of the Ideas of Law and Justice in the Writings of Lon L. Fuller, Michael Oakeshot, FA Hayek, Ronald Dworkin and John Finnis. Springer, 2016.

MacCormick, Neil, and Ota Weinberger. An institutional theory of law: new approaches to legal positivism. Vol. 3. Springer Science & Business Media, 2013.

O'Connell, Mary Ellen, and Caleb M. Day. "Sources in Natural Law Theories: Natural Law as Source of Extra-Positive Norms." (2016).

Pojanowski, Jeffrey A. "Redrawing the Dividing Lines Between Natural Law and Positivism (s)." Va. L. Rev. 101 (2015): 1023.

Raz, Joseph. "Legal positivism and the sources of law." Arguing About Law 117 (2013).

Tuori, Kaarlo. Critical legal positivism. Routledge, 2017.

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