Legal Positivism: Historical Schools of Thought
Positivism, the School of Exegesis, and Coding
In the early nineteenth century, naturalism exceeded the iusnaturalism of the seventeenth and eighteenth centuries. This improvement was presented as necessary. It was believed that natural law had triumphed, and from the political and legislative point, was realized. The problem had already been exceeded (the relationship between a natural law which was higher than positive law).
Schools of Legal Science in the Nineteenth Century:
- School of Exegesis (France)
- Analytical (Utilitarian) School (Great Britain)
- Historicist School (Germany)
Coding actually conducted the first two.
We distinguish two types:
- Ideological positivism
- Methodological or conceptual positivism
Firstly, the law is only positive law, by which means computers as social phenomena that vary historically.
Secondly, the qualification that something is right is independent of its justice or injustice.
Ideological positivism has its roots in Hobbes and argues that the law itself is an expression of morality. The state has a monopoly on the production of law and morality. The obligation of obedience to law is not only legal but also moral. It is a radical positivism that represents a reductionist view.
Legal positivism, developed in the nineteenth century, advocates the development of a scientific method that can actually be a legal science to study law. The century is characterized by the development of positive philosophies; all the sciences, especially the humanities, want to achieve the status of science (like physics). Keep in mind that the positivist conception of law has much in common with the philosophy that will positively affect other areas of reflection.
These three schools reflect on the nature of law. Their analysis seeks a different perspective from that which rationalist natural law had provided so far. The development we see through these three schools:
Historicism (Savigny)
Develops a formal cutting positivism. The law is designed as a system dependent on society. At that point in the 19th century, legal sociology develops. In Savigny, we find the influence of Montesquieu. He will develop a concept opposed to the school of exegesis (encoding) as to how it relates the law and society. The law is a set of rules that emerge spontaneously from society. It can be viewed as something that is imposed on society or individuals by the will of a legislator. Savigny, in his work, suggests that the right training is a fact of spontaneous and natural. The law lives in the conscience of the people and therefore assumes the features that are characteristic of the people to which it belongs. It establishes a parallel with language, customs, the Constitution, etc.
The right is somehow tied to a number of elements, and these elements find their unity in the beliefs of the people. One must leave aside all accidental origin or arbitration. If we adopt the historical perspective, we find that in early times the law was manifested through symbolic acts (grammar of law), so the task was based on the ancient keep, maintain and implement such acts, but as people evolve, there is a segregation of duties. These arise in various branches and one of them will be that of lawyers. On the right stands a political element (the dependence of people’s social life) and a technical element that represents his scientific life.
Savigny argues that natural law (such as popular right) is a right which depends on the society in which it is in effect. Ultimately the law will never be the will of a legislator. The Historical School argues that the matter of the right is given by the nation’s past in full view. In that sense, the law stems from the history of the nation, the people’s own past. The right is therefore not a product of abstract reason, but a product of history. Only positive law as a historical phenomenon that is both a source, a particular development.
Custom for this school is seen as an expression of tradition. This school will develop a formal positivism, and end in the Court of concepts.
School of Exegesis
Faced with this school, there is the School of Exegesis (the encoder movement is twofold, that of France and Great Britain).
In France, it’s own rationalist natural law which will promote the reform of positive law through the motion encoder. Fundamentally, this will rise from the rationalist ideal conception that lawmakers must make possible the realization of the Civil Code. The most closely identified with this current is the Napoleonic Code.
The important thing was to study the Code and its interpretation, inverting the relationship between natural law and positive in the sense that the right is the product of state law and therefore appears as the main source of law. The law expresses the will of the state and therefore the legislature.
The school of exegesis developed a model of legal science. The characteristic of this model is that it was a model of formal court. The right is going to identify with the will of the state and this agrees with certain formal requirements. In addition, we will meet with the French school that was only legally binding law, mandated by the state, and some believe that this concept really starts much of the idea and the acceptance by some despots had with respect to the encoding (Frederick II of Prussia).
Coding involved the adequacy of any right to law. It would eliminate any source of law (custom, precedents, statutes cities, etc.). It is considered to be set aside any interpretation other than the authentic (by the legislature itself). In that sense, the central problem for motion encoder will be the problem of legislation. It is about getting an order giving effect to the various opinions of universal reason, translating into laws and positive. This ideal was realized through the early nineteenth encodings.
The encoding, after all, it was a revolutionary reform. For the most part, the codes were nothing more than compilations of existing standards and, above all, responding to a need that was the beginning of the century. The most important legislative reform and that was more influential was the French, became a model for other countries. Also represented a shift in studies of science and legal philosophy to new challenges. In France, there were two different legal systems, in the south, the right was the Roman law of Justinian and the North the right set up by the custom of Germanic origin, so different from the Roman Law.
Since the beginning of the absolutist state in France, attempts have been made to reduce every right to one unit.
France tried since the beginning of the revolutionary Assemblies to establish or draft a comprehensive code of laws simple and clear. In the 1791 Constitution established the principle of the need to establish a unique code for Noseque, and is what achieves the Napoleonic Civil Code. We will find that for a restriction of the powers of judges, which led to the formulation of the thesis of the fullness of the Legal Order.
Therefore, the Legal Order was such that there were no gaps, it was a full, closed. This limitation led, mainly, to the concern to ensure the certainty of law. Therefore, the court had to judge based on state law. The law makes the dictates of reason, natural law. The principle of the fullness of the Legal Order took….
And so to the will of the state. This school flourished especially in France between 1830 and 1880 and the study of law was limited exclusively to comments in the code. He was commenting on article by article the content of the Code.
The Code was interpreted literally and that interpretation is defended to the extent it was believed that to be interpreted literally could answer any problems that arise. The cause and the condition of this school was primarily to provide a systematic body of rules with a perfectly logical order and therefore that the lawyer did not see the need for further investigation because he was convinced that the solution to any problem was going to research the code.
Then there was another element that contributed to this perception. This conformity with the code also had to do with the division of powers and the certainty of law, the state is also seen as a key element of strengthening their own authority reducing all right with the law. The method of this school and this philosophical outlook excludes any reference to a natural law, a customary law that was not the one established by the state and regarded as the only canon of statutory interpretation research on the intention and will of the legislature. The ideological perspective that leads to a static.
It presupposes the rationality of the legislator and will also pass the absolute value that natural law had. That idea is transferred to the right empirically established through the will of the state and thus becomes the true right.