Legal Positivism

Definition

Legal positivism is a school of thought in legal philosophy that holds that the validity of law is not dependent on its moral content but rather on its sources, such as statutes and judicial decisions. This view emphasizes that laws are rules created by human beings and must be followed regardless of whether they are seen as morally right or wrong. Legal positivism shapes the framework of civil law systems, which prioritize written laws and established legal codes over judicial interpretations or moral considerations.

5 Must Know Facts For Your Next Test

1. Legal positivism distinguishes between 'what the law is' and 'what the law ought to be', focusing strictly on established laws without moral implications.
2. In civil law systems, legal positivism influences the reliance on codified statutes as the primary source of law, making it easier to predict legal outcomes.
3. This theory often contrasts with natural law theories, which argue that there are inherent moral principles that laws should reflect.
4. Legal positivism underlines the importance of authority in law; a law’s validity comes from being enacted by a recognized authority rather than its moral merit.
5. Jurists like H.L.A. Hart and Joseph Raz have significantly contributed to the development of legal positivist thought, exploring how laws function within society.

Review Questions

• How does legal positivism influence the structure and functioning of civil law systems?
  • Legal positivism profoundly influences civil law systems by establishing that the primary source of law is written statutes and codes rather than judicial interpretations. This emphasis on codification means that laws must be followed as they are written, making legal outcomes more predictable and uniform across cases. As a result, civil law systems tend to focus on detailed legislative texts to govern various aspects of society, contrasting with common law systems where precedents play a significant role.
• Discuss the differences between legal positivism and natural law theory regarding the sources of law.
  • Legal positivism asserts that laws derive their validity from human-made sources such as statutes or regulations, regardless of their moral implications. In contrast, natural law theory posits that laws should reflect inherent moral principles derived from human nature or universal ethics. While legal positivists emphasize the importance of authority in law-making, natural law proponents argue that unjust laws lack legitimacy because they do not align with moral values. This fundamental disagreement shapes how different legal systems interpret and apply laws.
• Evaluate the implications of legal positivism for social justice and the application of laws in contemporary societies.
  • Evaluating legal positivism reveals complex implications for social justice in contemporary societies. On one hand, its emphasis on written laws creates a predictable and orderly legal framework, which can enhance fairness in enforcement. However, because it separates legality from morality, unjust laws may remain in effect if they follow proper legislative processes. This creates challenges for advocates of social justice who argue for reforming laws that may be legally valid yet ethically problematic. The tension between adhering to established laws and pursuing moral objectives continues to spark debates about the role of law in advancing social change.

Related terms

Natural Law: A theory asserting that laws are derived from unchanging moral principles inherent in human nature, contrasting with legal positivism's focus on human-made laws.

Codification:

The process of compiling and organizing laws into a systematic code, a key feature in civil law systems influenced by legal positivism.

Rule of Law: The principle that all individuals and institutions are subject to and accountable under the law, emphasizing the importance of clear legal frameworks as advocated by legal positivists.