Understanding Legal Science: Casamighia, Austin, and Bobbio
Lesson 4: Understanding Legal Science
Casamighia: A Descriptive Analysis of Law
The legal science aims to achieve a description of the object of study (Law). The descriptive analysis viewpoint is that of an observer, using a conceptual view to describe and analyze all the essential elements of law.
Casamighia’s legal science develops a framework that answers the question, “What is the law?” However, sometimes scientists try to apply the same conceptual scheme of science itself to problems that have to do with decisions, diluting the defense of the neutrality of objectivity and rigor from an absolutist perspective.
Austin’s Definition of Legal Standard
Austin defines the legal standard as those general mandates made by the sovereign to his subjects. A rule is mandated by an order, which hopes that someone will behave in a certain way and includes the intention to punish. Therefore, the rule of law involves:
- A subject of the standard
- An act to be conducted
- The occasion referring to the situation in which every act has to perform
What distinguishes the rule of law from another kind of mandate or limitation is that the mandates or rules that are legal have their origin in the will of a sovereign. In Austin’s theory, the concept of sovereignty is a central concept.
Bobbio’s Perspective on Legal Positivism
Following Bobbio, positivism involves a particular way of approaching the study of law and also a certain understanding of the law. Bobbio argues that legal positivism is an effort to turn the law into a real science, as seen in Austin, with core value-neutrality. This implies that the law must be considered as a fact and not as a value, meaning that value judgments are not within the scope of discussion of the science of law.
Legal positivists consider legal rules as those produced by the form set inside the legal system. Therefore, the criterion on which we are going to support to determine if a rule is valid is if legal validity is a purely formal and non-material matter. What matters is how the law has occurred, as has been the norm, and not the content thereof. What matters is how it is produced.
The second element also implies a particular theory of law, where Bobbio points out that legal positivism is a given theory of the right to say that fundamental conceptions presupposes 6 elements that allow us to see and point if we analyze the theory. The theory involves maintaining a coercive law, meaning we see a feature that allowed to distinguish whether there is a legal norm or other norms were the coercive power coercively punish non-compliance with the rule.
Secondly, a legislative law in which law takes precedence over the sources of law, thirdly an imperative of law, in the sense that legal rules are structured in terms of prescriptions.
If we take the positivist in its broadest sense would say that these three theories are the foundation of legal positivism, then we have other elements that have a secondary character and that it would allow us to speak of positivism in the truest sense of coherence of the system, the theory of the fullness of legal loopholes law rule has not solve all the problems that arise, third is the theory of logical or mechanistic interpretation of the law.