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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.


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 ?
Because Firmin's science was shaped by what can only be described as a positivist philosophy or a philosophy of progress, Firmin's book belongs not only to the history of the study of race but to the history of the philosophy of race as well.
Nevertheless, for mainstream positivists the authoritative political condition is the only determining feature of the nature of law.
6) But unlike exclusive positivists, inclusive positivists permit moral criteria to validate law if the social practice of a legal community assigns moral criteria such a role.
It can be said that positivist philosophy has had two main arguments: Science, with modernization, will take the place of religion and that through the accumulation of proven theories, we will eventually be able to discover the secret of the universe.
The interpretivist perspectives on validity and reliability are in Seale's view modifications as they do not break entirely from the positivist perspective.
41) Positivists were unified, however, in their insistence on "reorient[ing] legal thinking from philosophical debate about the nature of crime to an analysis of the characteristics of the criminal.
The truth is that positivists have no one to blame but themselves
If I venture down these well-trodden paths of the debate between Dworkin and the legal positivists yet again it is in order to explain the source of this odd state of affairs.
Soft positivists might charge that the policy-oriented conception gives excessive weight to policy, or is insufficiently determinate in its application of policy.
Indeed, an early name for the Vienna Circle, before they adopted the name of Logical Positivists, was the Ernst Mach Society.
In the past twenty-five years, many of these debates have devolved into disputes between proponents of public administration as a science using quantitative positivist methodologies and public administration as an art concerned with interpretation and subjectivity.
The positivists were most famous for teasing out the intricate analytic details of this demarcation, but they were not alone, nor were they the first.