Legal Postivism

Get Started. It's Free
or sign up with your email address
Rocket clouds
Legal Postivism by Mind Map: Legal Postivism

1. Epistemological Thesis

1.1. is based on the postivist idea that knowledge of values are acquired in different ways

1.2. Law and morality must be seperated

2. Social Thesis

2.1. Law is man made, based on social agreements or convention

3. Command Thesis

3.1. According to this theory law is usually defined as a command by a sovereign to those who is in the habit of obeying.

3.2. Later legal postivists do not accept this without criticism.

4. Hart debate

4.1. Courts can decide cases and take into condderation what the law ought to be

4.2. Law can be bad but it doesn't make them invalid.

4.3. Laws can be morally evil laws, but these are still laws & must be opposed on other grounds

5. Devlin Debate

5.1. Wolfenden Report, disagrees with this report, not the task of the law to enforce moral rules.

5.2. Existence + Enforcement of moral rules by the law is necessary for the continued existence of any society & therefore should form part of any society.

5.3. Cases should be decided on the convictions of every right minded person.

6. South African Debate

6.1. Focus on adjudication. A judge is not a judge of morals.

6.2. Role of judiciary during apartheid. Dugard critises SA courts' positionthat it will enforce the law as it it.

6.3. New Constitutional Dispensation. The formal vision of law to make way for the substantive vision of law.