MODR 1711 Lecture Notes - Lecture 23: Oliver Wendell Holmes Jr., Legal Realism, Legal Positivism
13 Apr 2018
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This is the idea that in order to be a law, a rule has to follow some overarching ethical principle. An unjust law is no law at all . Generally a law must either follow the will of god or must follow some objective moral code. The belief in the divine right of kings follows natural law. Legal positivism was first outlined by david hume and most notably by h. l. a. It argues that what makes something a law is simply that it is posited in a particular way. This means that not every law will be just. Essentially the legal positivists separate questions of what the law is (which is determined by historical social practice) and what the law should be (which is determined by moral considerations). Legal realism was outlined by oliver wendell holmes jr. We determine what a law is by looking at judicial rulings. This means that laws aren"t published rules but amalgamations of judicial decisions (precedent).
