Philosophy of Law Research Paper Example | Topics and Well Written Essays - 1250 words

Philosophy of jurisprudence - Research Paper mannequinAmongst them includes the Natural School of thinking, The positivist School of thinkinginter alia. This subject is a broad area of study and our reciprocation will be confined within the grounds, conceptualization, and comprehension of the Positive school of thinking under which statutory positivism being the speculation, which was propagated by John capital of Texas famously, referred to Austins Theory, was extracted. Austins possibleness commonly referred to as Legal Positivism revolves around the brain that uprightness is what it is and not what it ought to be. As was contradistinguished with the idea drove forth by the Natural School of practice of law thinkers who opined that law must reflect perfect(a) principles of Justice and morality which they believed originated from a super natural power beyond humans understanding but which dictated the lives of men and which existed independence of government recognition (Austin 40). Austins approach to Law offered the best-formulated alternative of both the natural school of law and utilitarian approaches, which were propagated by Bentham. He also move on the idea that there should be a complete separation of between law and morality and that law should be developed towards maximization of utility or personal pleasure or pain. Consequently, wisdom of a guiding policy washstand be calculated by addition of in all pleasures and subtraction of all pain brought to everyone. (Ibid) Austins theory of law is most often referred to as the overtop theory of law found on the fact that the concept of command lies at its core viz law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance or disobedience aimed at undermining its dictates (Patterson 244-46). A proper case scenario includes the laws of a state orchestrated from which norms and policies of a state are debated and passed by the legislative arm of the gov ernment. Assented by the president as the head of the executive, the same becomes a law, which commands the activities of the national within their sovereignty (Petterson 244-46). If a tort feaser feasernegligently causes an injury to a complainant, then the claim against him will be make based on the law. In the cause of his engagement with the claimant, the tort feaser must have been alive to the requirement norm. Once you subject one to danger and the same consequently occurs the event that proceeds thereafter shall cease to liability or remedy compensational by rules put forth in the statute, otherwise referred by Austin as sanctions of the state. The element of the breach originated from the actual conduct of the injury otherwise referred to as the actusreus is what dictates whether he is infer to be held accountable or liable for the injury against a claimant. The same argument equally applies to the immoral case instance where once it is established that the element of bo th mensrea and actusreus exists then the accused person can be punished according to a source of law that is in existence with accordance to the law of that state. Legality according to Austin, on this basis, is determined by the source of a norm and not based on the merits of its substance. The answer to the question what is law? is therefore obtained vide resort to facts not value. According to John Austin, a rule R is legally valid in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a