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Legal

Positivism
A school of Jurisprudence whose advocates believe that the onl
y legitimate sources of law are those written rules,regulations, a
nd principles that have been expressly enacted, adopted, or reco
gnized by a governmental entity or politicalinstitution, including
administrative, executive, legislative, and judicial bodies.
The key to legal positivism is in understanding the way positivis
ts answer the fundamental question of jurisprudence: "Whatis la
w?" The word "positivism" itself derives from the Latin root pos
itus, which means to posit, postulate, or firmly affix theexistenc
e of something. Legal positivism attempts to define law by firml
y affixing its meaning to written decisions made bygovernmenta
l bodies that are endowed with the legal power to regulate partic
ular areas of society and human conduct. If aprinciple, rule, regu
lation, decision, judgment, or other law is recognized by a duly a
uthorized governmental body or official,then it will qualify as la
w, according to legal positivists. Conversely, if a behavioral nor
m is enunciated by anyone or anythingother than a duly authoriz
ed governmental body or official, the norm will not qualify as la
w in the minds of legal positivists, nomatter how many people a
re in the habit of following the norm or how many people take a
ction to legitimize it.
Legal positivism is often contrasted with Natural
Law. According to the natural law school of jurisprudence, all
written lawsmust be informed by, or made to comport with, univ
ersal principles of morality, religion, and justice, such that a law
that is notfair and just may not rightly be called "law." For exam
ple, persons engaging in peaceful protest through civil disobedie
nceoften appeal to a higher natural law in denouncing societal pr
actices that they find objectionable. Legal positivists generallyac
knowledge the existence and influence of nonlegal norms as sources to consult in evaluating human behavior,
but theycontend that these norms are only aspirational, for perso
ns who contravene them suffer no immediate adverseconsequen

ces for doing so. By contrast, positivists emphasize that legal no


rms are binding and enforceable by the Police
Power of the government, such that individuals who violate the
law may be made to face serious consequences includingfine, im
prisonment, loss of property, or even death.
Legal positivism serves two values. First, by requiring that all la
w be written, positivism ensures that members of society willbe
explicitly apprised of their rights and obligations by the govern
ment. In a legal system that is run in strict accordance withpositi
vist tenants, litigants would never be unfairly surprised or burde
ned by the governmental imposition of an unwritten legalobligat
ion that was previously unknown or nonexistent. Second, legal positivism serves to curb judicial discreti
on. In somecases, judges are not satisfied with the outcome of a
case that would be dictated by a narrow reading of existing laws,
andthey may be tempted to reach a result that is more fair and j
ust. However, legal positivism requires judges to decide cases in
accordance with the law, and not their personal predilections. In
this way, positivists believe that the integrity of the law ismainta
ined through a neutral and objective judiciary that is not guided
by subjective notions of right and wrong.
Not surprisingly, the autonomous and detached nature of legal p
ositivism has been criticized for its harshness. The mereenactme
nt of a law by a political institution, some critics of positivism h
ave argued, does not mean that society should acceptall such la
ws as legitimate and binding. For example, the slave codes enfor
ced by the Confederacy during the Civil Wargenerally contained
clearly written rules that systematically deprived AfricanAmericans of their civil liberties, not to mentiontheir human dig
nity. In Nazi Germany, Adolph Hitler's regime brutally stripped
Jews of any governmental protection through alabyrinth of legal
codes.
Despite the written nature of these laws, critics of legal positivis
m argue, such legal systems must not be treated with thesame re
spect that is afforded to regimes that genuinely confer fundamen
tal liberty equally upon all persons. Legal positivism,these critic

s point out, sometimes emasculates the social function of law by


preventing it from serving human needs. Thus,these critics conc
lude that written law ceases to be legitimate when it is divorced
from principles of fairness, justice, andmorality. The American
colonists based their revolt against the tyranny of British law pre
cisely upon this point. In fact, theDeclaration of Independence, b
y declaring that "all men are created equal [and] endowed by t
heir Creator with certaininalienable rights," embodies clear natu
ral law principles.
Legal positivism has ancient roots. Christians believe that the Te
n Commandments have sacred and preeminent value inpart because they were inscribed in stone by Go
d, and delivered to Moses on Mount Sinai. When the ancient Gr
eeksintended for a new law to have permanent validity, they ins
cribed it on stone or wood and displayed it in a public place for
allto see. In classical Rome, Emperor Justinian (483565 A.D.) developed an elaborate system of law that was contain
ed in adetailed and voluminous written code.
Prior to the American Revolution, English political thinkers Joh
n Austin and Thomas
Hobbes articulated the commandtheory of law, which stood for
the proposition that the only legal authorities that courts should r
ecognize are the commands ofthe sovereign, because only the so
vereign is entrusted with the power to enforce its commands wit
h military and police force.
The most famous advocate of legal positivism in American histo
ry is probably Justice OLIVER WENDELL HOLMES, JR. He wrote t
hatthe "prophecies of what the courts will do in fact, and nothin
g more pretentious, are what I mean by the law" (O.W. HolmesJ
r., "The Path of the Law," 10 Harvard Law Review 457 [1897]).
In making this statement, Holmes was suggesting that themeani
ng of any written law is determined by the individual judges inte
rpreting them, and until a judge has weighed in on alegal issue, t
he law is ultimately little more than an exercise in trying to gues
s the way a judge will rule in a case.
Further readings

Allan, James. 2003. "A Modest Proposal. David Dyzenhaus vs.


Matthew Kramer on Legal Positivism" Oxford Journal of Legal
Studies 23 (summer): 197210.
Himma, Kenneth Einar. 2002. "Situating Dworkin: The Logical
Space Between Legal Positivism and Natural Law Theory."Okla
homa City University Law Review 27 (spring): 41150.
Tamanaha, Brian Z. 2001. "Sociolegal Positivism and a General Jurisprudence." Oxford Journal o
f Legal Studies 21 (spring):132.
West's Encyclopedia of American Law, edition 2. Copyright
2008 The Gale Group, Inc. All rights reserved.

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Mentioned in?

Dworkin, Ronald Myles


Holmes, Oliver Wendell, Jr.
Kant, Immanuel
positivism
References in periodicals archive?
In fact, Kelsen's brand of legal positivism requires a new
methodological grounding to save it from critics who have
attacked its Kantian roots.
The pure theory as ideal type: defending Kelsen on the
basis of Weberian methodology
Berkowitz's narrative encourages a new understanding of
the nature of modern legal positivism.
Berkowitz, Roger. The Gift of Science: Leibniz and the
Modern Legal Tradition
Kremer shows that legal positivism is a democratic form
of relativism that is a reaction to the failure of certain
democratic hopes for peace and harmony, and he
recognizes in Cleitophon's movement from the hope for an
art of justice to legal positivism a similar movement of
Marxists and Stalinists to postmodernism and
multiculturalism.
Kremer, Mark, Editor and Translator. Plato's Cleitophon:
on Socrates and the Modern Mind
Legal positivism or "pragmatism" is ultimately amoral
and dangerous--whether exemplified by the antebellum
South or its subsequent Jim Crow segregation, or Nazism,
or South African apartheid, or communist "people's
republics," or in the abortion license of Roe v.
Witness against the age of irony
He argues that all of this shared knowledge about law,
both by legal professionals, but also by generally
educated citizens, is made sense of, that is explained, by
his restatement of legal positivism.
Evidence, mischaracterized insights, and the nature of law
Leoni and Hayek's approaches consider common law as a
spontaneous-order process, as distinguished, for
example, from other philosophies that see the common-

law process through a lens of legal positivism, effectively


treating judges as functionally equivalent to legislators.
Bruno Leoni's legacy and continued relevance
Unlike conventional international legal positivism,
inclusive positivism acknowledges that moral obligation
plays a role in the validation of human rights law
consistent with the practice of human rights actors.
Separation anxiety? Rethinking the role of morality in
international human rights lawmaking
Small, but concise, this cornerstone of Morgenthau's
intellectual experience presents a innovative theory of the
notion of the political, criticizing in the first instance the old
theories of Carl Schmitt's conception of "friend" and "foe"
and Hans Kelsen's legal positivism and later developing
a new theory where the concept of the political is the
central factor of any human association and the study of
politics.
Hartmut Behr and Felix Roesch (eds.), Hans J.
Morgenthau, The concept of the Political
The ironic, unintended consequence of embracing moral
voluntarism was strengthening rather than countering the
concurrent rise of secular legal positivism.
Natural Law and Evangelical Political Thought
Hart's theory of legal positivism which has heavily
influenced Western society law.
The auto-demolition of the church and society
Justice for Hedgehogs therefore provides a more abstract
justification for what he has been doing for years,
beginning with his famous attack on the theory of legal
positivism of H.
The unity and objectivity of value
Hart was invited to deliver the Oliver Wendell Holmes
Lecture at Harvard Law School and devoted it to a
defense of legal positivism, especially its insistence on
the separation between law and morality.
Cane, Peter ed.: The Hart-Fuller Debate in the TwentyFirst Century

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