• Video

What is Positivism?

Professor Eric Claeys discusses the origins of positivism. In the 18th century, scholars began to discuss and analyze the law according to utilitarian standards, rejecting much of the common law tradition. Jeremy Bentham and John Austin introduced positivism as a new predominant jurisprudence. Positivists assert that the only qualification for a law to be a law is for it to be “posited” by the proper authorities in a community. Whether a law is just or unjust has no bearing on its status as a law. https://youtube.com/watch?v=3nZlgCzdVng

Transcript

Leaders and teachers assumed that principles of natural Law provided a solid foundation for life throughout the Middle Ages, the sixteen hundreds and the seventeen hundreds. But in the seventeen hundreds, things started to change. There were political theorists and moral theorists throughout the sixteen hundreds who had raised questions about natural law, and by the early seventeen hundreds, you started to see theorists, scientists, who were proposing theories of government that were consequentialist or they were utilitarian. And those theorists doubted that there were principles of natural law, and they thought that it was better to think about what just policy required by thinking about what was good for a community, and what was good in terms of the advantage of the utility of the people in the community. And there was a critical mass of those people by the 1770s in England, and once there was a critical mass of Utilitarians, Utilitarians started to write, teach, make scholarly articles, and make arguments in public policy, insisting that their view was the preferred way to think about policy, and challenge the people who didn't come at issues of public policy, the way they did to defend themselves on utilitarian grounds. When intellectual trends changed in England, people came to see law differently. The two thinkers who deserve pride of place for bringing positivism in as a serious alternative in jurisprudence are Jeremy Bentham and then John Austin. Bentham deserves credit for negative work, he did the work to lampoon, ridicule, and make seem unpersuasive Blackstone. And Austin introduced the first positivist account of law in the English tradition. Positivists hold that the only thing one needs to know about a directive to know whether it's a law, is to know whether it's been accepted, whether it's been posited. And for positivists, it is interesting and important to know whether a directive is a just directive or unjust directive, but directives being just or unjust has no bearing on whether it is in fact, a law. All one needs to know to know whether a directive is law, is to know whether it's been accepted by the right people, in the right authorities in a community. Most non- positivists agree with positivists that directives need to be accepted or posited in order to be law. Non-positivists insist that there's another feature that's necessary to law. Law has some connection to justice. And so, one doesn't know all the things one needs to know about a directive and one doesn't know all the things one needs to know, to know whether a directive's law unless one has some account of whether the directive is a just directive. Positivism means a lot of different things in different contexts. In moral philosophy, positivism is a view holding that beliefs about morality are local to particular people or to particular communities; there are not principles of morality that can transcend different communities. In analytical philosophy of law, positivism is a thesis saying that the most important thing, or the only thing one needs to know about a directive is to know whether people in that society accept the directive as being law.

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