FILSAFAT HUKUM: Mazhab Positivisme Hukum @fokkyfuad

Introduction

This tutorial explores the concept of Legal Positivism, a significant school of thought in legal philosophy. It aims to provide a clear understanding of its principles, key figures, and implications for legal systems. Understanding Legal Positivism is essential for law students, legal practitioners, and anyone interested in the philosophy of law.

Step 1: Understand the Basics of Legal Positivism

• Legal Positivism asserts that law is a set of rules and norms created by human beings.
• It emphasizes that the validity of a law is not dependent on its moral content but rather on its sources, such as statutes and regulations.
• Important figures in Legal Positivism include:
  • Jeremy Bentham: Known for his utilitarian approach to law.
  • H.L.A. Hart: Introduced the concept of the rule of recognition, which distinguishes law from other social rules.

Step 2: Explore Key Principles of Legal Positivism

• Separation of Law and Morality: Legal Positivism argues that there is a clear distinction between what the law is and what the law ought to be.
• Social Facts: Laws are considered valid if they arise from social practices and are recognized by authorities.
• Legal Certainty: Positivism promotes the idea that the law should be clear and predictable, allowing individuals to understand their rights and obligations.

Step 3: Analyze Criticisms of Legal Positivism

• While Legal Positivism has its strengths, it faces criticism, mainly regarding its disregard for moral considerations.
• Critics argue that laws can be unjust, and a purely positivist framework may lead to the acceptance of oppressive laws.
• Consider the implications of this criticism in real-world legal systems, where moral considerations may influence judicial decisions.

Step 4: Apply Legal Positivism to Real-World Scenarios

• Case Studies: Analyze specific legal cases through the lens of Legal Positivism to see how the principles apply.
• Comparison with Other Schools of Thought: Compare Legal Positivism with Natural Law and Legal Realism to understand its unique position in legal philosophy.

Conclusion

Legal Positivism provides a framework for understanding law as a human-made construct, independent of moral considerations. By grasping its principles and recognizing its limitations, individuals can engage more effectively in legal discourse. As a next step, consider exploring how these concepts manifest in contemporary legal debates and cases.