TY - JOUR
T1 - THE DEVELOPMENT OF POSITIVISM'S LEGAL THEORY
T2 - FROM BENTHAM TO HART
AU - Sistyawan, Dwanda Julisa
AU - Saraswati, Retno
AU - Lita, Tyesta A.L.W.
AU - Jayawibawa, Marcellus
AU - Aris, Mohammad Syaiful
N1 - Publisher Copyright:
© 2024, Lembaga Kajian Konstitusi Indonesia (LKKI), Fakultas Syariah dan Hukum, Universitas Islam Negeri Ar-Raniry. All rights reserved.
PY - 2024/11/1
Y1 - 2024/11/1
N2 - This paper explores the development of legal positivism from Jeremy Bentham to H.L.A. Hart, focusing on key figures and their contributions to the theory. The primary issue addressed is the evolution of legal positivism as a descriptive and normative theory that distinguishes law from morality. The study aims to trace how Bentham's utilitarian approach laid the foundation for legal positivism, Austin's command theory emphasized law as commands of the sovereign, and Hart's concept of law introduced a more nuanced understanding of primary and secondary rules. A qualitative approach with descriptive analysis involves an in-depth literature review of primary texts and secondary sources. Data includes books, journal articles, and legal documents related to positivist legal theory. The analysis reveals that Bentham's utilitarianism influenced legal frameworks to maximize societal welfare. Austin's command theory underscored the authoritative nature of law, and Hart's rule of recognition provided a framework for legal validity. The findings conclude that while Bentham and Austin's theories emphasized law's coercive power, Hart's contributions offer a more comprehensive view highlighting the interplay between legal rules, societal norms, and the functionality of legal systems in modern contexts.
AB - This paper explores the development of legal positivism from Jeremy Bentham to H.L.A. Hart, focusing on key figures and their contributions to the theory. The primary issue addressed is the evolution of legal positivism as a descriptive and normative theory that distinguishes law from morality. The study aims to trace how Bentham's utilitarian approach laid the foundation for legal positivism, Austin's command theory emphasized law as commands of the sovereign, and Hart's concept of law introduced a more nuanced understanding of primary and secondary rules. A qualitative approach with descriptive analysis involves an in-depth literature review of primary texts and secondary sources. Data includes books, journal articles, and legal documents related to positivist legal theory. The analysis reveals that Bentham's utilitarianism influenced legal frameworks to maximize societal welfare. Austin's command theory underscored the authoritative nature of law, and Hart's rule of recognition provided a framework for legal validity. The findings conclude that while Bentham and Austin's theories emphasized law's coercive power, Hart's contributions offer a more comprehensive view highlighting the interplay between legal rules, societal norms, and the functionality of legal systems in modern contexts.
KW - Austin
KW - Bentham
KW - Evolution of Legal Theory
KW - Hart
KW - Legal Positivism
UR - http://www.scopus.com/inward/record.url?scp=85210431489&partnerID=8YFLogxK
U2 - 10.22373/petita.v9i1.402
DO - 10.22373/petita.v9i1.402
M3 - Article
AN - SCOPUS:85210431489
SN - 2502-8006
VL - 9
SP - 777
EP - 801
JO - Petita: Jurnal Kajian Ilmu Hukum dan Syariah
JF - Petita: Jurnal Kajian Ilmu Hukum dan Syariah
IS - 2
ER -