THE IDEOLOGY OF LEGAL POSITIVISM
Legal positivism is a legal theory that asserts that the only valid laws are those that are made by human authorities through deliberate actions. The term "positive law" suggests that law is a product of human will, contrasting it with laws that arise naturally. The foundations of this idea can be traced back to thinkers like Thomas Hobbes and Jeremy Bentham, who emphasized that true law is created by recognized legislators. They distinguished between "real law" created by authorized entities and "unreal law," which includes judge-made law or common law, implying that it lacks legitimacy.
Despite this core assertion, the belief that lawmakers determine the content of the law can be misleading. In many legal systems, lawmakers provide general instructions on how to interpret and apply the law but may not specify the actual laws themselves, particularly in systems that rely on common law or customary rules. This leads to the confusion that the law always reflects the will of the legislator, which is not accurate.
Legal positivism further claims that all laws are inherently similar in nature and that justice plays no role in defining them. Positivists often try to eliminate the difference between laws that govern behavior and those that organize government. This has led them to view justice as subjective and reliant on authority rather than as a guiding principle for law. Some proponents suggest that any law created must be accepted, even if it does not align with justice or moral standards.
Ultimately, legal positivism risks simplifying law to mere commands from authorities, neglecting the longstanding ideal of law as a framework for justice. This perspective challenges the historical connection between law and justice, suggesting instead that laws define what is just, contradicting the idea that concepts of justice should inform legal principles.
Legal positivism is a legal theory that asserts that the only valid laws are those that are made by human authorities through deliberate actions. The term "positive law" suggests that law is a product of human will, contrasting it with laws that arise naturally. The foundations of this idea can be traced back to thinkers like Thomas Hobbes and Jeremy Bentham, who emphasized that true law is created by recognized legislators. They distinguished between "real law" created by authorized entities and "unreal law," which includes judge-made law or common law, implying that it lacks legitimacy.
Despite this core assertion, the belief that lawmakers determine the content of the law can be misleading. In many legal systems, lawmakers provide general instructions on how to interpret and apply the law but may not specify the actual laws themselves, particularly in systems that rely on common law or customary rules. This leads to the confusion that the law always reflects the will of the legislator, which is not accurate.
Legal positivism further claims that all laws are inherently similar in nature and that justice plays no role in defining them. Positivists often try to eliminate the difference between laws that govern behavior and those that organize government. This has led them to view justice as subjective and reliant on authority rather than as a guiding principle for law. Some proponents suggest that any law created must be accepted, even if it does not align with justice or moral standards.
Ultimately, legal positivism risks simplifying law to mere commands from authorities, neglecting the longstanding ideal of law as a framework for justice. This perspective challenges the historical connection between law and justice, suggesting instead that laws define what is just, contradicting the idea that concepts of justice should inform legal principles.