Legal positivism

Definition

Legal positivism is a school of thought in legal theory that emphasizes the importance of written laws and legal statutes created by human beings rather than moral considerations. This perspective asserts that law is a set of rules enacted by governing bodies, and its validity is not dependent on any ethical or moral criteria. Legal positivism stands in contrast to natural law theories, which argue that laws should be based on inherent moral principles.

5 Must Know Facts For Your Next Test

1. Legal positivism asserts that laws are valid as long as they are created through recognized procedures and institutions, regardless of their moral implications.
2. This theory was notably championed by legal philosophers like H.L.A. Hart and Joseph Raz, who emphasized the separation of law and morality.
3. Legal positivists believe that the study of law should focus on the text of legal statutes rather than ethical considerations or social justice.
4. The central tenet of legal positivism is encapsulated in the idea that 'law is law,' meaning that it must be obeyed as long as it has been properly enacted.
5. Legal positivism often leads to discussions about the role of judicial interpretation and how judges apply written laws to specific cases.

Review Questions

• How does legal positivism differentiate itself from natural law theories?
  • Legal positivism differs from natural law theories by asserting that the validity of laws is based solely on their creation through established processes and institutions, without any reliance on moral principles. While natural law holds that laws must align with universal ethical standards to be valid, legal positivists maintain that laws are legitimate as long as they are enacted properly, regardless of their moral implications. This fundamental difference highlights the contrasting views on the relationship between law and morality.
• Evaluate the significance of H.L.A. Hart's contributions to legal positivism and how they shaped modern legal theory.
  • H.L.A. Hart's contributions to legal positivism significantly shaped modern legal theory through his arguments about the nature of law and its relationship to society. In his influential work 'The Concept of Law,' Hart introduced ideas such as the distinction between primary rules (which govern behavior) and secondary rules (which provide the framework for creating and enforcing laws). His work emphasized the importance of legal systems in maintaining order and clarity within society, while also addressing critiques from natural law proponents. Hart's emphasis on the rule of recognition further solidified legal positivism's standing in contemporary legal discourse.
• Critically analyze how legal positivism addresses issues of justice and social change within the context of written laws.
  • Legal positivism faces criticism for its perceived inadequacy in addressing issues of justice and social change, given its strict focus on written laws as valid irrespective of their moral standing. Critics argue that this approach can lead to unjust outcomes when laws perpetuate inequality or oppression. However, supporters contend that legal positivism provides a clear framework for understanding and interpreting laws, which can then be challenged or amended through democratic processes. By separating law from morality, legal positivism encourages active engagement in reforming unjust laws rather than relying solely on ethical arguments, promoting a pragmatic approach to achieving social change.

Related terms

Natural Law: A theory that posits the existence of universal moral principles that underlie and inform human-made laws.

Legal Realism: A movement that focuses on how law is actually applied in practice, emphasizing the role of social, economic, and contextual factors in shaping legal decisions.

Statutory Law: Laws that are formally enacted by legislative bodies and written into legal codes.