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Concept
Legal positivism
Summary
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 Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
laws are commands of human beings;
there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be;
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;
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);
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.
The term positivism is derived from Latin ponere, positum, meaning "to put". "Positive law" is that which is man-made, i.e., defined formally.
In the positivist opinion, the source of a law is the establishment of that law by some legal authority which is recognised socially. The merits of a law are a separate issue: it may be a 'bad law' by some standard, but if it was added to the system by a legitimate authority, it is still a law.
Official source
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