A jurisprudence that sees law as a body of man-made rules. Key to legal positivism is the concept of sovereignty and the exercise of sovereign power. Positive law sets out rules of conduct based on the relationship between those who rule and those who are ruled. To the positivist, law is a body of rules adopted and enforced by the state as it seeks to administer justice. In a representative democracy, positive law is a rule based on the will of the majority. The foremost exponent of legal positivism was John Austin, an English jurist of the nineteenth century. Austin rejected natural law jurisprudence. Instead, he saw law as a body of content quite separate from moral abstractions and social forces. While those factors exist, they do not directly bear upon the “science” of positive law. Because Austin provided the broadest theoretical framework for positivism, legal positivism is often referred to as Austinian Positivism. Legal positivism is also referred to as analytical jurisprudence.
Legal positivism has had a substantial influence on American legal thought. Prior to Austin, positivistic thought was apparent in William Blackstone’s Commentaries on the Law of England, although it was interwoven with elements of natural law jurisprudence. Blackstone argued that laws must not contradict the laws of nature. At the same time, he saw law emanating from the state as a secondary law of nature with principles that are certain and unchangeable. Blackstone stressed fixed legal principles and logic and saw law as the perfection of reason. The legal theory of Blackstone largely shaped the attitudes of American colonists and were strongly represented at the Constitutional Convention in Philadelphia. Positivism has also had an impact on defining the role of the Judiciary (U.S.) in American law. The judicial process to the positivist is virtually mechanical. Judges examine the circumstances of a dispute in relation to the law that emanates from the power of the state and render decisions through the application of sheer logic. Notwithstanding arguments advanced to the contrary, by behavioral and political jurisprudents for example, the idea of judges discovering law through wholly neutral principles and logic remains a central element of American legal thought.
Legal Positivism: Open and Free Legal Research of US Law
Federal Primary Materials
The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Legal Positivism. This part provides references, in relation to Legal Positivism, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).
Federal primary materials about Legal Positivism by content types:
Administrative decisions by federal agency provides links to administrative actions that are outside the scope of the CFR or the Federal Register. (copiar esta info: guides.lib.virginia.edu/administrative_decisions)
Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:
Legislative history traces the legislative process of a particular bill (about Legal Positivism and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Legal Positivism or other topics), or locating the current status of a bill and monitoring its progress.
Bills by congress at Lawi when seeking specific bill text, legislative history or congressional record information from a specific congress.
State Administrative Materials and Resources
State regulations are rules and procedures promulgated by state agencies (which may apply to Legal Positivism and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Legal Positivism. Finding these decisions can be challenging. In many cases, researchers about Legal Positivism should check state agency web sites for their regulations, decisions, forms, and other information of interest.
State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here: