Legal Positivism

LEGAL POSITIVISM

A school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.

The key to legal positivism is in understanding the way positivists answer the fundamental question of jurisprudence: "What is law?" The word "positivism" itself derives from the Latin root positus, which means to posit, postulate, or firmly affix the existence of something. Legal positivism attempts to define law by firmly affixing its meaning to written decisions made by governmental bodies that are endowed with the legal power to regulate particular areas of society and human conduct. If a principle, rule, regulation, decision, judgment, or other law is recognized by a duly authorized governmental body or official, then it will qualify as law, according to legal positivists. Conversely, if a behavioral norm is enunciated by anyone or anything other than a duly authorized governmental body or official, the norm will not qualify as law in the minds of legal positivists, no matter how many people are in the habit of following the norm or how many people take action to legitimize it.

Legal positivism is often contrasted with natural law. According to the natural law school of jurisprudence, all written laws must be informed by, or made to comport with, universal principles of morality, religion, and justice, such that a law that is not fair and just may not rightly be called "law." For example, persons engaging in peaceful protest through civil disobedience often appeal to a higher natural law in denouncing societal practices that they find objectionable. Legal positivists generally acknowledge the existence and influence of non-legal norms as sources to consult in evaluating human behavior, but they contend that these norms are only aspirational, for persons who contravene them suffer no immediate adverse consequences for doing so. By contrast, positivists emphasize that legal norms 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 including fine, imprisonment, loss of property, or even death.

Legal positivism serves two values. First, by requiring that all law be written, positivism ensures that members of society will be explicitly apprised of their rights and obligations by the government. In a legal system that is run in strict accordance with positivist tenants, litigants would never be unfairly surprised or burdened by the governmental imposition of an unwritten legal obligation that was previously unknown or non-existent. Second, legal positivism serves to curb judicial discretion. In some cases, judges are not satisfied with the outcome of a case that would be dictated by a narrow reading of existing laws, and they may be tempted to reach a result that is more fair and just. 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 is maintained 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 positivism has been criticized for its harshness. The mere enactment of a law by a political institution, some critics of positivism have argued, does not mean that society should accept all such laws as legitimate and binding. For example, the slave codes enforced by the Confederacy during the Civil War generally contained clearly written rules that systematically deprived African-Americans of their civil liberties, not to mention their human dignity. In Nazi Germany, Adolph Hitler's regime brutally stripped Jews of any governmental protection through a labyrinth of legal codes.

Despite the written nature of these laws, critics of legal positivism argue, such legal systems must not be treated with the same respect that is afforded to regimes that genuinely confer fundamental liberty equally upon all persons. Legal positivism, these critics point out, sometimes emasculates the social function of law by preventing it from serving human needs. Thus, these critics conclude that written law ceases to be legitimate when it is divorced from principles of fairness, justice, and morality. The American colonists based their revolt against the tyranny of British law precisely upon this point. In fact, the Declaration of Independence, by declaring that "all men are created equal… [and] endowed by their Creator with certain inalienable rights," embodies clear natural law principles.

Legal positivism has ancient roots. Christians believe that the Ten Commandments have sacred and pre-eminent value in part because they were inscribed in stone by God, and delivered to Moses on Mount Sinai. When the ancient Greeks intended for a new law to have permanent validity, they inscribed it on stone or wood and displayed it in a public place for all to see. In classical Rome, Emperor Justinian (483-565 a.d.) developed an elaborate system of law that was contained in a detailed and voluminous written code.

Prior to the American Revolution, English political thinkers john austin and thomas hobbes articulated the command theory of law, which stood for the proposition that the only legal authorities that courts should recognize are the commands of the sovereign, because only the sovereign is entrusted with the power to enforce its commands with military and police force.

The most famous advocate of legal positivism in American history is probably Justice oliver wendell holmes, jr. He wrote that the "prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law" (O.W. Holmes Jr., "The Path of the Law," 10 Harvard Law Review 457 [1897]). In making this statement, Holmes was suggesting that the meaning of any written law is determined by the individual judges interpreting them, and until a judge has weighed in on a legal issue, the law is ultimately little more than an exercise in trying to guess 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): 197–210.

Himma, Kenneth Einar. 2002. "Situating Dworkin: The Logical Space Between Legal Positivism and Natural Law Theory." Oklahoma City University Law Review 27 (spring): 41–150.

Tamanaha, Brian Z. 2001. "Socio-legal Positivism and a General Jurisprudence." Oxford Journal of Legal Studies 21 (spring): 1–32.