Assignment
Write a 2 - 3 page summary of Legal Positivism, giving a brief account of classical Legal Positivism, but concentrating on modern Legal Positivism. You are to draw upon the lectures and the textbook, with no other sources permitted.
Here is some advice-a rough outline perhaps-of how you may go about tackling the Legal Positivism summary.
Begin by expressing as succinctly as possible, Austin's theory of law.
Then highlight the good parts-the social thesis and the separation thesis, explaining each.
Then outline Hart's objections to Austin's theory
Once you sketch those out, end with a discussion of how Austin's theory could not accommodate the internal vs. external view of law
Next, you want to explain Hart's idea of the fusion of primary and secondary rules
Then, you can move on to explain the Rule of Recognition, showing how it helps to establish the internal point of view within a legal system as well as establish legal validity.
Remember, the Rule of Recognition is what gives the law its validity-we recognize legal rules as valid because they come from a certain process, from a certain place within our legal culture. The fact that those processes and places are the source of legitimacy is neither legitimate nor illegitimate, not valid nor invalid. They are just how we practice law in a certain jurisdiction.)
While the ideas of penumbral meaning, the open texture of language, and discretion are important parts of Hat's theory, they are not directly involved in the theory of flaw itself. So, while it is important stuff, and some of it can be included, concentrated on the above outline, you will dedicate all your allotted space to just the theory.
Text Book: Readings in the Philosophy of Law edited by Keith C. Culver, second Edition.