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What is the relationship between legal positivism and legal realism?
Is legal positivism based on social facts?
Do positivists and realists agree on law?
Do legal realists believe in natural law?
Legal positivism, understood as formalism, believes that in most cases the law provides definite guidance to its subjects and to judges; legal realists, on the other hand, often embrace rule scepticism, claiming that legal rules are indeterminate and do not constrain judicial discretion.
Difference between legal realism and legal positivism. Legal positivism is a separate topic from legal realism. The discrepancies are important analytically as well as normatively. Both structures consider the rule as a human creation.
Summary. Leiter considers the relation between legal positivism and legal realism. He argues that H. L. A. Hart’s theory of law is really a species of legal realism, and that there are four ways in which this is so, namely, that the law operates primarily outside the courts; that the law is sometimes rationally indeterminate; that the law is ...
Aug 29, 2019 · This paper explores the relationships between legal positivism and legal realism. Legal positivists hold that all law is positive law, that it is based on social sources. The law is therefore incomplete: there are legal disputes that cannot be determined by law alone.
- Leslie Green, Leslie Green
- 2019
Jan 3, 2003 · Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus: The existence of law is one thing; its merit and demerit another.
Taking the essential thesis of legal positivism to be that all law is positive law, that all law has sources, Green considers the relationships between legal positivism and ‘its closest cousin’, legal realism, focusing mainly on American legal realism.
Realism. As the legal-positivist position, whether Kelsenian or Hartian, became the dominant view among philosophers of law in the 20th century, there developed alongside it an influential but very different approach to thinking about law, now usually described as legal realism.
