Austin vs Hart

Legal positivism is the thesis that the existence and content of equity depends on tender facts and non on its merits. The English jurist John Austin (1790-1859) formulated it so The existence of impartiality is one thing its merit and demerit a nonher. Whether it be or be not is one enquiry whether it be or be not conformable to an assumed standard, is a contrasting enquiry. (1832, p. 157) The positivist thesis does not say that laws merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist.Whether a society has a legal system depends on the front line of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for cerebration that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it.According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc. ) as we might say in a more ultramodern idiom, positivism is the view that law is a social construction. Austin thought the thesis simple and glaring. bandage it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.