法律实证主义者对自然法的批判及评析-法学专业论文.docx

Abstract In the history of western legal thought, the debate between legal positivism and natural law for over 200 years has always been the focus of academic attention and discussion in jurisprudence circles. Being an opponent of natural law, the rise of legal positivism is based on the criticism to the theory of natural law. The source of any critical ideas is rooted in its own theoretical basis, legal positivism’s criticism to the natural law is of no exception. By reviewing the legal positivists’ critical views at different historical periods, we can find that, although the content, the prospective and the strength of the legal positivists critical views of different historical periods are varying from each other, these critical views are marked by the basic characters of legal positivism, which give vitality to the legal positivism in the fighting against the natural law and for holding the fort. These characters are that they never give up the theory of social facts and the separation theory which are at the very core of legal positivism. By means of sorting out the legal positivists critical views at different historical periods, this paper tries to present a dynamic process of the development of legal positivism in about 200 years, and to get a correct understanding and to position it properly. This paper is composed of five parts. The first part is introduction which is to clarify the development course of legal positivism, including focus of the contradictory between legal positivism and natural law, and research review. The second part mainly expounds the critical views of the early legal positivists and finds features of these critical views. According to Utilitarian principle, Bentham firmly opposed the theory of natural right and social contract which he consider may not fit in with legal reform of western society in the nineteenth century. Austin quite approves of Bentham’s ideas against the social contract theory, and he also thinks that there is so