Legal positivism

Legal positivism is a school of thought of analytical jurisprudence, largely developed by eighteenth- and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism and logical positivism set the theoretical foundations for such developments to occur. The most prominent legal positivist writing 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:

Historically, legal positivism sits in opposition to natural law 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 ponere, positum, meaning, "to put". "Positive law" is that which is man-made, i.e., formally laid down.

In the positivist view, the "source" of a law is the establishment of that law by some socially recognised legal authority. 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.

The Stanford Encyclopedia of Philosophy summarises the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction."

Legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation.

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