Legal Positivism

Legal Positivism in the United States

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.

See Also

Legal Realism (Judicial Function) Natural Law (Judicial Function).

Analysis and Relevance

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.

Notes and References

  1. Definition of Legal Positivism from the American Law Dictionary, 1991, California

Legal Positivism: Open and Free Legal Research of US Law

Federal Primary Materials

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State Administrative Materials and Resources

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State opinions of the Attorney General (official written advisory opinions on issues of state law related to Legal Positivism when formerly requested by a designated government officer):

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