Open AccessDevelopment of English Legal Positivism from Bentham to Salmond and Brown: Leading Ideas in the Context of the Common Law Tradition
Author(s) -
Anton Mikhailovich Mikhailov,
Viktor BESPALKO,
Anastasia Mikhailovna Korzhenyak
Publication year - 2021
Language(s) - English
Resource type - Journals
ISSN - 2738-2753
DOI - 10.24234/wisdom.v1i1.669
Subject(s) - positivism , legal positivism , jurisprudence , law , philosophy of law , context (archaeology) , black letter law , philosophy , field (mathematics) , sociology , epistemology , comparative law , political science , private law , history , mathematics , archaeology , pure mathematics
This article examines the peculiarities of the evolution of English legal positivism, which was the only direction of understanding law formed by professional lawyers, expressing the specifics of their legal consciousness, focused on understanding positive law and the practice of its implementation. The authors examine the key concepts that define the historical trajectory and problem field of legal positivism in the Anglo-American tradition, analyzing the legal teachings of T. Hobbes, D. Hume, J. Bentham, J. Austin, M. Hale, W. Blackstone, J. W. Salmond and W. J. Brown. The attention is drawn to the fact that Salmond lays down objections to the concept of law as a rule of the state and considers its main shortcomings. In his work “Jurisprudence or the Theory of Law”, Salmond presents the flaws and omissions of the “imperative theory of law”, among the proponents of which he names T. Hobbes, S. von Pufendorf, J. Bentham and J. Austin. Brown believes that the essence of law can be expressed by a set of three concepts: “will”, “command” and “reason”, and the just conception of law implies recognition of the elements of unity, growth and growth that is consciously directed towards the realization and achievement of the goal.