positivism

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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 government body, including administrative, executive, legislative, and judicial bodies.

Positivism sharply separates law and morality. It is often contrasted with Natural Law, which is based on the belief that all written laws must follow universal principles of morality, religion, and justice. Positivists concede that ethical theories of morality, religion, and justice may include aspirational principles of human conduct. However, positivists argue that such theories differ from law in that they are unenforceable and therefore should play no role in the interpretation and application of legislation. Thus, positivists conclude that as long as a written law has been duly enacted by a branch of government, it must be deemed valid and binding, regardless of whether it offends anyone's sense of right and wrong.

Positivism serves two values. First, by requiring that all law be written, positivism ensures that the government will explicitly apprise the members of society of their rights and obligations. In a legal system run in strict accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the government imposition of an unwritten legal obligation that was previously unknown and nonexistent. The due process Clauses of the Fifth and Fourteenth Amendments incorporate this positivist value by mandating that all persons receive notice of any pending legal actions against them so that they can prepare an adequate defense.

Second, positivism curbs 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. For example, some judges may not want to allow a landlord to evict an elderly and sick woman in the middle of winter, even if the law authorizes such action when rent is overdue. However, positivism requires judges to decide cases in accordance with the law. Positivists believe that the integrity of the law is maintained through a neutral and objective judiciary that is not guided by subjective notions of Equity.

Positivism has been criticized for its harshness. Some critics of positivism have argued that not every law enacted by a legislature should be accepted as legitimate and binding. For example, laws depriving African Americans and Native Americans of various rights have been passed by governments but later overturned as unjust or unconstitutional. Critics conclude that written law ceases to be legitimate when it offends principles of fairness, justice, and morality. The American colonists based their revolt against the tyranny of British law on this point.

Positivism still influences U.S. jurisprudence. Many judges continue to evaluate the viability of legal claims by narrowly interpreting the law. If a right asserted by a litigant is not expressly recognized by a statute, precedent, or constitutional provision, many judges will deny recovery.

Further readings

Conklin, William E. 2001. The Invisible Origins of Legal Positivism: A Re-reading of a Tradition. Boston: Kluwer Academic.

Neyhouse, Teresa J. 2002. Positivism in Criminological Thought: A Study in the History and Use of Ideas. New York: LFB Scholarly.

Sebok, Anthony J. 1995. "Misunderstanding Positivism." Michigan Law Review 93.

Soper, Philip. 1996. "Searching for Positivism." Michigan Law Review 94.

Tuori, Kaarlo. 2002. Critical Legal Positivism. Burlington, Vt.: Ashgate.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

positivism

as a theory of law, it may be summarized by saying that law may have any content. The law is what is laid down and that is an end to it. It is directly contrary to natural law theories, which tend to have some touchstone that a man-made law has to meet for its validity. Positivism faces serious problems in that it opens the way to the use of law as a means of social engineering. It is of value in giving up law's claims to protect higher values. The rule of law and constitutions are only as strong as the individuals working with them and the political realities of the society to which they apply.
Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
(68) While broad constructionism in the United States certainly fashions a greater remedy beyond a narrow reading of a given constitutional provision, by accounting for the context and contemporary application of the fundamental constitutional principle, the epistemology does not go beyond the presumptions that limits the positivist model. In other words, even in a case like Brown v.
Our current Canadian justice system owes much to two schools of thought that emerged in the eighteenth and nineteenth centuries when social justice was somewhat less than equitable: the classical and the positivist models.
It is a conception that deserves serious consideration as the positivist model and the practices of actual librarians and users begin to lose touch with each other.
Consistent with the positivist model, Baird's lawyer informed Baird that the government had never sanctioned an employer for employing undocumented domestic workers in Connecticut.(118) According to the full-picture model, he not only was justified in providing that information, but he would have been delinquent had he not done so.(119) In seeking legal assistance, Baird was entitled to know as much about the law as her lawyer did.