THE DEVELOPMENT OF POSITIVISM'S LEGAL THEORY: FROM BENTHAM TO HART

Dwanda Julisa Sistyawan, Retno Saraswati, Tyesta A.L.W. Lita, Marcellus Jayawibawa, Mohammad Syaiful Aris

Research output: Contribution to journalArticlepeer-review

Abstract

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.

Original languageEnglish
Pages (from-to)777-801
Number of pages25
JournalPetita: Jurnal Kajian Ilmu Hukum dan Syariah
Volume9
Issue number2
DOIs
Publication statusPublished - 1 Nov 2024

Keywords

  • Austin
  • Bentham
  • Evolution of Legal Theory
  • Hart
  • Legal Positivism

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