The modern academic discipline of sociology began with the work of Émile Durkheim (1858-1917). While rejecting many details of Comte`s philosophy, Durkheim maintained and refined his method, asserting that the social sciences are a logical continuation of the natural in the realm of human activity, insisting that they could maintain the same objectivity, rationalism, and approach to causality. [25] Durkheim founded the first European Department of Sociology at the University of Bordeaux in 1895 and published his Rules of the Sociological Method (1895). [26] In this text, he stated: «Their main objective is to extend scientific rationalism to human behavior. What our positivism has been called is only a consequence of this rationalism. [13] Nevertheless, Fuller`s principles function internally, not as moral ideals, but simply as principles of effectiveness. As Fuller would probably acknowledge, the existence of a legal system is compatible with a significant departure from the principles of legality. Legal norms, for example, are necessarily proclaimed in general terms, which inevitably leads to problems of indeterminacy. And too often, officials do not administer the law fairly and impartially – even in the best jurisdictions.
Such deviations may still be prima facie reprehensible, but they are incompatible with a legal system only if they render a legal system incapable of fulfilling its essential function of guiding conduct. To the extent that these principles are embedded in the conditions of existence of the law, it is because they act as conditions of effectiveness – not because they function as moral ideals. The positivist might counter that the Riggs Tribunal, in considering this principle, extended beyond the law to extra-legislative norms in the exercise of judicial discretion. But Dworkin points out that Justices Riggs would have been «justified» in ignoring this principle; If it were merely an extrajudicial standard, there would be no legitimate reason to criticize the failure to take into account (Dworkin 1977, p. 35). Therefore, Dworkin concludes that the best explanation for the appropriateness of such criticism is that the principles are part of the law. The main characteristics of positivism from the 1950s onwards, as defined in the «received point of view»[79], are as follows: Legal positivism is associated with empiricist and logico-positivist theoretical traditions. Its methods include descriptive surveys of selected legal systems. Peter Curzon wrote that this approach «uses the inductive method in its investigations,» which progresses «from the observation of certain facts to the generalization of all these facts.» [7] These studies avoid assessments of ethics, social welfare and morality. As Julius Stone wrote, the legal positivist inquiry is primarily concerned with «an analysis of legal concepts and an examination of the logical relations of legal propositions.» [ref. needed] Moreover, law and its authority are formulated as source-based: the validity of a legal norm does not depend on its moral value, but on the sources determined by the rules and conventions of a social community.
[7] This source-based conception is consistent with the logical positivism of Rudolf Carnap, who rejected metaphysical assumptions about the nature of reality beyond observable events. According to Fuller, no system of rules that does not at least respect these principles of legality can achieve the essential purpose of the law, which is to achieve social order through the use of rules that guide behavior. A system of rules that doesn`t meet (P2) or (P4), for example, can`t control behavior because people can`t determine what the rules require. Accordingly, Fuller concludes that his eight principles are «internal» to law in the sense that they are embedded in the conditions of existence of law: «Total failure in one of these eight directions does not simply lead to a bad legal system; it leads to something that is not called a legal system at all» (Fuller 1964, p. 39). Most often, the separability thesis is interpreted in such a way that it only makes an assertion at the object level about the conditions of existence for legal validity. As described by H.L.A. Hart, the separability thesis is nothing more than the «mere assertion that it is by no means a necessary truth that laws reproduce or satisfy certain requirements of morality, when in fact they often have» (Hart 1994, pp.
181-82). To the extent that the object-oriented interpretation of the separability thesis denies that it is necessary that there be moral limits to legal validity, it implies the existence of a possible legal system in which there are no moral restrictions on legal validity. The word «positivism» was probably used to draw attention to the idea that the law is «positive» or «postulated,» as opposed to «natural» in the sense that it is derived from natural law or morality. Furthermore, Dworkin asserts that the legal authority of norms such as the Riggs Principle cannot be inferred from promulgation in accordance with purely formal requirements: «Although the principles are supported by the official actions of legal institutions, they have no simple or direct connection with those acts to formulate that link in terms of criteria, which are established by an ultimate rule of primary recognition» (Dworkin 1977, p. 41). Unlike legal regulations, legal principles do not have a canonical form and therefore cannot be explained by formal promulgation. Logical positivism arose from discussions in a group called the Vienna First Circle, which met at the Café Central before World War I. After the war, Hans Hahn, a member of this first group, helped bring Moritz Schlick to Vienna. Schlick`s Vienna Circle, as well as Hans Reichenbach`s Berlin Circle, continued to disseminate the new teachings in the 1920s and early 1930s. Auguste Comte (1798-1857) first described the epistemological perspective of positivism in The Course in Positive Philosophy, a series of texts published between 1830 and 1842.
These texts were followed in 1844 by A General View of Positivism (published in French in 1848, in English in 1865). The first three volumes of the course dealt mainly with the already existing physical sciences (mathematics, astronomy, physics, chemistry, biology), while the last two focused on the inevitable arrival of the social sciences. Comte, who observes the circular dependence of theory and observation in science and thus classifies the sciences, can be considered the first philosopher of science in the modern sense of the term. [11] [12] For him, the physical sciences had to come first before humanity could adequately direct its efforts towards the most demanding and complex «queen science» of human society itself. His vision of positivism thus sought to define the empirical objectives of the sociological method. Legal positivism is a philosophy of law that emphasizes the conventional nature of law – that it is socially constructed. According to legal positivism, the law is synonymous with positive norms, that is, norms established by Parliament or considered common law or jurisprudence. Formal criteria of origin of the law, application of the law and legal validity are sufficient to consider social norms as law. Legal positivism does not base law on divine commandments, reason, or human rights. As a historical issue, positivism arose in opposition to the classical theory of natural law, according to which there are moral limits necessary to the content of law. Today`s imperative theories have no influence on the philosophy of law (but see Ladenson 1980 and Morison 1982).
What has survived from their point of view is the idea that legal theory must ultimately be rooted in an account of the political system, an idea shared by all the great positivists except Kelsen. However, their particular idea of a society under a sovereign commander is friendless (except among the Foucauldians, who strangely regard this relic as the ideal type of what they call «juridical» power).