Legal Positivism: Definition, Pros & Cons

Instructor: Jennifer Schneider

Jennifer teaches critical thinking, legal writing and research, business law and justice studies courses. She has a law degree.

In this lesson, we learn about legal positivism, which is an example of a philosophy of law or school of legal jurisprudence. You also complete a quiz to test your understanding.

What Is Legal Positivism?

As a young student, you knew that the rules posted on the walls of your classroom were the rules that described your expected behavior. The rules were written in some form (possibly marker or crayon) to document their legitimacy. You might not have known the rules' origins, but you knew you were expected to follow the stated rules. You also knew that a breach would have consequences. Some of the rules may have seemed arbitrary or unfair. Nevertheless, they were the applicable classroom law, and you most likely did your best to comply with them.

Much like you accepted the rules as the law of your classroom, legal positivists accept all laws that have been passed in accordance with society's norms. Legal positivism is a legal philosophy or theory of legal jurisprudence that does not consider the underlying merits of an applicable law (or whether the law is morally right or wrong) when evaluating whether a law governs behaviors. The legal positivist accepts approved rules and laws as law, whether or not he or she agrees with them from a moral perspective. Did you ever stop, though, to consider what exactly a law is?

Schools of legal jurisprudence (the study of law) address the question of what is law differently. Legal positivism (one model of legal jurisprudence) is most commonly contrasted with natural law, which is another legal philosophy. Questions that may come up when we consider what is law are - Is our law simply an end product or body of words drafted by individuals with authority? Or, is our law linked to (or even dependent on) an underlying moral standard? Maybe the preferred answer lies somewhere in between these two extremes?

Legal Positivism's View on Law

For the legal positivist, if a teacher has been vested with the authority to make rules, then the teacher's rules govern (whether or not those subject to the rules agree with them). Law is synonymous with what has been posited or passed by the legislator. Much like a student in a classroom looks to the teacher's rules on the wall as his or her guiding principles, the legal positivist looks to the rules set forth by a legislating body as the basis for law.

Suppose, for example, a classroom poster states that bathroom breaks are limited to two per day and not more than two minutes each. To the legal positivist, the moral merits of the rules do not matter. The legal positivist would accept the two minute limitation as law, simply because the teacher had the authority to make the classroom rules.

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