Legal Positivism

Legal Positivism is a school of legal thought that asserts only laws created by government
entities hold authority. These laws must be explicitly established through written rules and
principles. The core question legal positivism addresses is, "What is law?" The term "positivism"
comes from the Latin word "positus," meaning to firmly establish or postulate the existence of
something. Legal positivism defines law by firmly connecting its meaning to the written
decisions made by authorized government bodies responsible for regulating specific aspects of
society and human behavior. According to legal positivism, if a principle, rule, regulation,
decision, judgment, or any other legal standard is recognized by a duly authorized government
body or official, it qualifies as law. Conversely, if a norm is articulated by someone or something
other than an authorized government entity or official, it does not qualify as law, regardless of
the number of people who follow it.
Legal positivism is often compared to natural law. Natural law proponents argue that all written
laws must align with universal principles of morality, religion, and justice. According to them, a
law that is not fair and just cannot be rightfully called "law." For instance, individuals engaged in
peaceful protests through civil disobedience often appeal to a higher natural law when criticizing
objectionable societal practices. Legal positivists generally recognize the existence and influence
of non-legal norms as references for assessing human conduct. However, they believe these
norms are aspirational, as individuals who violate them do not face immediate adverse
consequences.
In contrast, positivists emphasize that legal norms are binding and enforceable through the
government's police power, which means individuals breaking the law can face serious
consequences like fines, imprisonment, loss of property, or even death.
Legal positivism serves two main purposes. First, it ensures that all laws are in written form,
providing citizens with a clear understanding of their rights and obligations. In a legal system
following positivist principles, individuals would not be unfairly surprised by the government
imposing previously unknown or non-existent legal obligations. Second, legal positivism helps
restrict judicial discretion. Judges might sometimes seek a result they find more fair and just than
what narrow interpretations of existing laws dictate. However, legal positivism requires judges to
decide cases in line with the law, not their personal preferences. This way, positivists maintain
that the law's integrity is upheld by an impartial and objective judiciary guided by legal
principles rather than subjective notions of right and wrong.
Notably, legal positivism's detached and impartial nature has been criticized for its severity.
Critics argue that merely enacting a law by a political institution does not automatically make all
such laws legitimate and binding. For example, laws like the slave codes during the American
Civil War systematically denied African-Americans their civil liberties and dignity, despite being
written. In Nazi Germany, legal codes stripped Jews of any governmental protection,
demonstrating that such legal systems should not receive the same respect as those genuinely
ensuring fundamental liberty for all. Critics claim that written laws lose their legitimacy when
divorced from fairness, justice, and morality, emphasizing the importance of these principles.
The concept of legal positivism has historical roots, with examples like the Ten Commandments,
Greek inscriptions, Roman laws, and the developed legal system of Emperor Justinian in
classical Rome. English thinkers John Austin and Thomas Hobbes also played a role in
articulating the command theory of law, which suggested that courts should only recognize the
commands of the sovereign as legal authorities. This is because the sovereign alone has the
power to enforce these commands using military and police forces.