- "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."
The view that the only valid sources of law are those created by the social conventions and rules of a particular society or nation.
Definition of Legal Positivism: It refers to a legal philosophy that considers law as an artificial creation that is distinct from moral principles or values.
Sources of Law: Legal positivism proposes that the source of law comes from man-made rules, rather than moral or religious beliefs.
Separation Thesis: This theory states that law and morality should be kept separate, and legal decisions should be based solely on legal rules and principles.
H. L. A. Hart's Theory: Hart's theory of legal positivism posits that legal systems consist of primary and secondary rules. Primary rules are those that regulate individual conduct, while secondary rules govern the procedures for creating, changing, and enforcing primary rules.
John Austin's Theory: Austin viewed law as a command from a sovereign that elicits obedience from people, with a threat of punishment if violated.
Criticisms of Legal Positivism: There are various criticisms of legal positivism, including that it may lead to unjust laws and that the separation thesis is not always clear-cut.
Natural Law Theory: Natural law theory posits that certain moral principles are inherent in law, and that law should be used to promote justice and protect basic human rights.
Legal Realism: Legal realism is a legal philosophy that stresses the importance of the social, economic, and cultural contexts in which law operates.
Feminist Legal Theory: Feminist legal theory examines the ways in which law reflects and reinforces gender inequalities and seeks to use law to promote gender justice.
Critical Legal Studies: Critical legal studies asserts that law is not an objective, neutral tool, but rather a form of power that reinforces and reproduces social hierarchies and injustices.
Classical legal positivism: This is the traditional view, which holds that the law is separated from morality and that legal validity is based on the conventions, rules, and habits created by the positive law. This view emphasizes the centralized legislative power of the state.
Conceptual legal positivism: This approach is concerned with the linguistic meaning of legal terms and concepts. It asserts that the meaning of legal concepts has to be derived from the way those concepts are constructed in the legal system.
Normative legal positivism: This view deals with the normative implications of legal positivism, emphasizing the value of the rule of law and the possibility of legal reform. It argues that law possesses a moral dimension, and that justice is a value which the rule of law promotes.
Soft positivism: This approach looks at the interaction between law and non-legal factors, and emphasizes how legal decisions are influenced by social and economic factors. Soft positivists argue that legal institutions and practices are affected by social, economic, and political conditions.
Directive legal positivism: This approach emphasizes the significance of the government's motives in enacting laws, arguing that they should be taken into account while interpreting legal texts. It suggests that the law is inherently political and that those who have the power to govern determine the law.
Natural law positivism: This view considers the connection between legal systems and moral values. It argues that, while laws and rules may be created and applied in a positive sense, the law is also subject to moral constraints.
Institutional legal positivism: This approach focuses on the role of legal institutions such as courts, judges, and other legal authorities, in creating the legal system. It argues that these institutions are central to the creation and maintenance of the legal system.
Contemporary legal positivism: This is a more recent view of legal positivism which recognizes a moral element in the law. It emphasizes the idea of legal reasoning, and the way in which legal decisions are based on legal principles and established legal practices.
Sociological legal positivism: This perspective emphasizes the cultural, social, and economic aspects of law. It focuses on the way in which the law is created, implemented, and enforced, and on how legal decisions affect society.
Critical legal positivism: This approach is concerned with the critique of conventional legal theories and the development of alternative legal theories. It emphasizes the role of power, ideology, and culture in the creation and implementation of legal rules and principles.
- "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."
- "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."