What is meant by legal positivism?
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus:
The existence of law is one thing; its merit and demerit another
Legal positivism is a theory of law that holds the term "law" is identical to the laws that exist as a matter of convention. In other words, there is no idea or natural law on which conventional laws are based. Laws are simply "posited" by lawmakers, and those are the laws people should obey.
Consequently, legal positivists think that laws are not subject to moral, religious, or philosophical justification. This is not to say that legal positive advocates for obedience or disobedience to particular laws. Instead, legal positivists do not believe that can be given any future justification beyond how they arise from actual conventions.
It is noteworthy that legal positivism disagree on whether a system of laws can incorporate moral components. Inclusive legal positivism holds that; while a legal system is logically independent of morality, a system of laws can nevertheless include moral components. Exclusive legal positivism, by contrast, holds that a legal system cannot coexist alongside moral content; thus, moral maxims or commandments must be excluded from a judge's interpretation and application of the law. From this perspective, the only guide for a judge to examine a case is the laws that are already established by convention.
What are the main ideas of legal positivism?
Legal positivism is one of the leading philosophical theories of the nature of law, and is characterized by two theses:
1. the existence and content of law depends entirely on social facts (e.g., facts about human behavior and intentions), and
2. there is no necessary connection between law and morality
Why is it called positivism?
Legal positivism is the name typically given to a theory of law that holds that the norms that are legally valid in any society are those that emanate from certain recognized sources (such as legislatures or courts) without regards for their merits, i.e., without regard for whether the norms are fair or just
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austain developed legal positivism theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivism winter in English has been H. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
i. laws are commands of human beings;
ii. there is not any necessary relation between law and morality, that is, between law as it is and it ought to be;
iii. analysis ( or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions;
iv. a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations (legal formalism);
v. moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics).
Historically, legal positivism is in opposition to natural law's theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.
Difference between Legal positivism and Legal realism:
Legal positivism is distinct from legal realism. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American legal realists, positivists believe that in many instances, the law provides reasonably determinate guidance to its subjects and to judges, al least in trial courts.
Niklas Luhmann asserts "We can reduce positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable).
However, positivism do not assert that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts.
As for the moral validity of law, both positivists and realists maintain that this is a matter of moral principles. "The power of decision" has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision
What is legal positivism vs natural law?
Legal positivism vs natural law is a debate about whether conventional laws need some justification
outside of the law-making process. For legal positivists, whatever laws happen to be passed are all equally binding. For natural law advocates, only those laws that follow (or do not violate) natural laws are binding.