Summary of Common Knowledge Points in 221 Judicial Examination

The concept of "one method at a test site": positivism and non-positivism

(1) Basic propositions are different

When positivism defines the concept of law, no moral factors are included, that is, law and morality are separated. Positivism believes that there is no conceptual inevitable connection between law and morality, between what the law commands and what justice requires, that is, between the actual law and the ought-to-be law. What is the law actually? And? What should the law be? .

Non-positivism defines the concept of law, and moral factors are included, that is, law and morality are interrelated.

(II) The concept contains different contents

The elements of legal positivism definition method include authoritative formulation and social effectiveness. Among them, the concept of law with social effectiveness as the primary definition element, such as sociology of law and legal realism; The concept of law with authoritative formulation as the primary defining factor, such as analytical jurisprudence, is represented by Austin, Hart and kelsen.

the elements of non-positivist definition method: the correctness of content, social effectiveness and authoritative formulation. Taking the correctness of content as the only defining factor of the concept of law, represented by the traditional theory of natural law; Those who take the three elements as the elements of the definition of law at the same time surpass the third way of natural law and analytical positivism law, such as Aleksi.