CRITICAL ANALYSIS OF POSITIVE APPROACHES TO LAW (LEGAL POSITIVISM) (CASE STUDY: HANS KELSEN AND HERBERT HARTS' VIEWPOINTS)

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GHAMAMI SEYED MOHAMMAD MAHDY; AZIZI HOSEIN

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Journal: PUBLIC LAW STUDIES QUARTERLY Year:2016 | Volume:46 | Issue:1 Page(s): 139-159

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Title

CRITICAL ANALYSIS OF POSITIVE APPROACHES TO LAW (LEGAL POSITIVISM) (CASE STUDY: HANS KELSEN AND HERBERT HARTS' VIEWPOINTS)

Author(s)

GHAMAMI SEYED MOHAMMAD MAHDY | AZIZI HOSEIN | Issue Writer Certificate

Keywords

FUNDAMENTAL NORMQ1

HANS KELSENQ2

HERBERT HARTQ1

LAWQ2

POSITIVISMQ1

RULE OF DISTINCTIONQ1

Abstract

Legal POSITIVISM is among legal theories that deems a morally neutral descriptive perspective not only possible, but also necessary. Based on this theory, positive LAWs are passed by governments. Therefore these LAWs are distinct from ethical principles which under the Natural LAW Philosophy are considered to be eternal and even in some theories are hold to be divine. Contemporary Legal POSITIVISM has been mainly introduced and heavily influenced by views of HANS KELSEN and Herbert Lionel Adolphus Hart. The impact of the aforementioned scholars is to the extent that it's merely impossible to speak of POSITIVISM without analyzing their narratives. Kelsen's Pure Theory of LAW attempts to introduce a pure and sharp positivist approach, whereas HERBERT HART follows a utilitarian approach with a more moderate tone. However, both Kelsen and Harts' viewpoints are rooted in principles of POSITIVISM. Whether considered exclusively or in the legal scope, based on Kelsen and Harts' view, the above-mentioned principles lack consistency and are in conflict with the function of LAW in today's society. As a conclusion, if applied, these principles will encounter unintended results.

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APA: Copy

GHAMAMI, SEYED MOHAMMAD MAHDY, & AZIZI, HOSEIN. (2016). CRITICAL ANALYSIS OF POSITIVE APPROACHES TO LAW (LEGAL POSITIVISM) (CASE STUDY: HANS KELSEN AND HERBERT HARTS' VIEWPOINTS). PUBLIC LAW STUDIES QUARTERLY, 46(1), 139-159. SID. https://sid.ir/paper/251131/en

Vancouver: Copy

GHAMAMI SEYED MOHAMMAD MAHDY, AZIZI HOSEIN. CRITICAL ANALYSIS OF POSITIVE APPROACHES TO LAW (LEGAL POSITIVISM) (CASE STUDY: HANS KELSEN AND HERBERT HARTS' VIEWPOINTS). PUBLIC LAW STUDIES QUARTERLY[Internet]. 2016;46(1):139-159. Available from: https://sid.ir/paper/251131/en

IEEE: Copy

SEYED MOHAMMAD MAHDY GHAMAMI, and HOSEIN AZIZI, “CRITICAL ANALYSIS OF POSITIVE APPROACHES TO LAW (LEGAL POSITIVISM) (CASE STUDY: HANS KELSEN AND HERBERT HARTS' VIEWPOINTS),” PUBLIC LAW STUDIES QUARTERLY, vol. 46, no. 1, pp. 139–159, 2016, [Online]. Available: https://sid.ir/paper/251131/en

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