LAWS13016 JURISPRUDENCE: Legal Positivism

Legal positivism is the most influential school of thought in jurisprudence. This is hardly surprising because the idea of law as the creation of a human law-giver is a common intuition. Ask the person on the street, where does law come from and expect to hear that law is the work of Parliaments, monarchs, or other rulers. Ask a lawyer what law is and anticipate an answer that it is drawn from legislation and judicial precedents. Once upon a time people may have regarded the law as received from divine sources but in the modern world, where most laws have a human author, people think of law as the formulated product of designing human minds.

Law as a social fact

Legal positivists regard the law as a “social fact” by which they mean that law is found in the actual practices or the institutions of society. Legal positivists have their significant disagreements but they share the common aim of helping people understand the law as it actually is. A survey of positivist writings on the nature of the law reveals the following themes:

Law is the creation of human agents. Every custom is not law unless it is recognised and enforced by a human authority.

The law as it is can be distinguished from the notion of what the law ought to be. Law is a social fact. It is found in rules declared by authorities such as legislatures and courts, or in the actual practices of those who enforce the law.

There are good practical reasons for distinguishing the law as it is from what the law ought to be. It will make the law more clear and certain, so that people have a better idea of their rights and duties and the community is better able to assess the worth of laws and whether or not they should be obeyed.

It is possible to identify a set of formal criteria by which we may determine whether or not a rule is a law

There is no necessary connection between law and morality, though many laws are based on moral precepts. A law does not cease to be a law if it fails some moral test, that is not in itself a law, even if a legal system may leave room for judges to introduce their moral standards in deciding controversies. According to legal positivists, that makes no difference to the positive character of the laws.

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