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.

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.
References in periodicals archive ?
The irony of legal positivism, Atria remarks, is now plain for everyone to see.
One's argument for historical jurisprudence might be based less on its (and social legal theory's) uncontroversial claims about the importance of history and culture to law, and more on the assertion that contemporary alternative approaches--legal positivism, natural law theory, etc.--have important defects and gaps.
Critics have analyzed the philosophy of Existentialism in different paradigms, but those who explicitly address the problematic relation between Existentialism and Positivism are few in number.
Whereas positivism emphasizes the objective, law-like properties of a brute reality independent of observation (Donaldson, 1992; Wicks & Freeman, 1998), anti-positivism emphasizes the creative role of active, subjective participants, none of whom owns a privileged claim on truth (Burrell & Morgan, 1979; Astley, 1985; Martin, 1990).
Just as Bobbio strove to provide a scientific account of law, he attempted to fight the decline toward legal positivism and Kelsen's legal theory accused of having dangerously decreased the anxious concern for values and the defense for democracy and pacifist ideals against imperialism and dictatorship.
Much of the scholarly analysis here is undertaken specifically in relation to Ludwig Wittgenstein's equal parts cryptic and pellucid Tractatus Logico-Philosophicus (1921), which the Vienna Circle thinkers who devised logical positivism treated as a major inspiration.
In fact, positivism origins in the thought and writings of Rene Descartes, and almost derived from Isac Newton.
Lastly, I have to connect the meaning of the fable in the defects-coming-after reading with Hart's concern with protecting the achievements of legal positivism as stated in Positivism and the Separation of Law and Morals, showing that the same concern remains in play in his later work.
LeMahieu argues not only that his authors engaged with logical positivism, but that they shared a curious disavowal of doing so: theirs is "a genealogy that is often erased in the very texts where it registers and disowned by the very authors it includes" (6).This is the "erasure" of his title, and examining it demands a method that, "unlike many philosophical approaches to literature, combines theoretical and archival methods." Recovering the overt engagement recorded in drafts and notes makes the published fictions' philosophical origins legible, "woven in the fabric and hidden in plain sight" (5).
For reservation, visit Positivism Art Gallery at 5080 Filmore Street corner Fahrenheit Street, Brgy.
Of the few churches of positivism established anywhere, the one in Rio looks like it is about to crumble physically of neglect due to its shrinking "congregation." Since Brazil clearly separates religion and state, and does not build or maintain churches (unlike Turkey, which is secular only in legal terms and does build and maintain mosques), the members of the "Igreja Positivista do Brazil" (Church of Positivism) nowadays pin their hopes on the federal state to help save the building for its "historical value." The community of those who believe in positivist philosophy is not only about to become extinct in Brazil, but also in the world at large.