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Analytical Jurisprudence

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Submitted By sandria
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ANALYTICAL JURISPRUDENCE
(LEGAL POSITIVISM)

Synopsis:

(i) Socio-economic and historical context on which it arose.

(ii) Positivism in Philosophy – the important founder Augustine Cômte.

(iii) Its expression in Law – Analytical Legal Positivism.

(a) Different aspects of Legal Positivism
(b) John Austin
(c) Neo-Positivist Trends
(aa) Hart’s Concept
(bb) Linguistic Trend

(iv) Kelsen’s Pure Theory of Law

(v) General Appraisal and Critique

(1) Socio-economic and historical context

Just before 1848 Revolution, Marx says in the development of Bourgeois class there are 2 phases to distinguish:

(i) One which constitutes support Absolute Monarchy

(ii) The one which constitutes itself as class, overthrows Feudalism and it establishes its own political rule (Bourgeois Rule)

The 1st phase lasted for 3 centuries from 16th C – 18th C

The 2nd phase roughly from 1780’s to 1840’s. Actually 1789-1848 is called the Ag of Revolution.

During the 1st phase, when it is still constituting itself – their philosophical spokesmen are found in NL school – i.e. Hobbes, Locke etc. – Notion of Justice and equality show the core they argue for change against status quo.

The philosophy is metaphysical but revolutionary because it is fighting for change against the status quo.

2nd Phase: The triumph/victory of the Bourgeoisie. In this phase – consolidation of the Bourgeoisie clan at the political level - this found expression in the French Revolution 1789. – Bourgeoisie is confident, interested in certainty, no longer interested in speculation but hard facts. It is during this period that positivism arises.

2 Strands of Development

(1) Development of S & T – directly connected with development of Industrial revolution.

(2) The development of centralized Bourgeois state on (1) S & T industrial revolution was unprecedented development. In

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