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date: 02 October 2022

p. 743. Classical legal positivismlocked

p. 743. Classical legal positivismlocked

  • Raymond WacksRaymond WacksEmeritus Professor of Law and Legal Theory

Abstract

This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.

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