We are independent & ad-supported. We may earn a commission for purchases made through our links.
Advertiser Disclosure
Our website is an independent, advertising-supported platform. We provide our content free of charge to our readers, and to keep it that way, we rely on revenue generated through advertisements and affiliate partnerships. This means that when you click on certain links on our site and make a purchase, we may earn a commission. Learn more.
How We Make Money
We sustain our operations through affiliate commissions and advertising. If you click on an affiliate link and make a purchase, we may receive a commission from the merchant at no additional cost to you. We also display advertisements on our website, which help generate revenue to support our work and keep our content free for readers. Our editorial team operates independently of our advertising and affiliate partnerships to ensure that our content remains unbiased and focused on providing you with the best information and recommendations based on thorough research and honest evaluations. To remain transparent, we’ve provided a list of our current affiliate partners here.
Procedures

Our Promise to you

Founded in 2002, our company has been a trusted resource for readers seeking informative and engaging content. Our dedication to quality remains unwavering—and will never change. We follow a strict editorial policy, ensuring that our content is authored by highly qualified professionals and edited by subject matter experts. This guarantees that everything we publish is objective, accurate, and trustworthy.

Over the years, we've refined our approach to cover a wide range of topics, providing readers with reliable and practical advice to enhance their knowledge and skills. That's why millions of readers turn to us each year. Join us in celebrating the joy of learning, guided by standards you can trust.

What is Legal Positivism?

By Jacob Queen
Updated: May 16, 2024
Views: 24,761
Share

In simple terms, legal positivism is the idea that laws are purely based on what the government officially decides. This basically means that law and morality don't necessarily have to be connected in any way. Legal positivism generally values the clarity of exactness over the nuance of societal belief systems. It is in opposition to the idea of so-called "natural" law, which views law as an extension of moral norms that already exist in the society and, essentially, discredits laws that exist in violation of those norms.

According to legal positivism, if a law is written down by an official authority, it should be followed, even if it isn't necessarily justified or ethical. The obedience to laws regardless of moral opinion is seen as necessary to maintain order in a society. There may be a millions slightly different views of morals and ethics, but legal positivists generally think the law should be free of these nuances in order to avoid chaos.

According to many experts, positivism has both advantages and disadvantages. One of the main potential advantages is the clearness of positivism. When laws are defined in an explicit way, nobody has to use guesswork when trying to stay within legal boundaries. Everybody knows exactly what is expected of them, and many people believe clear boundaries help people avoid confusion, which sometimes makes legal systems more just.

There are also some perceived potential disadvantages of legal positivism. The biggest danger may be the potential for oppression by the majority over the minority. For example, there was a time when slavery was technically legal in the United States and many other parts of the world. Some experts would argue that defiance of those kinds of laws is not only justified, but actually necessary in order to move society forward. Another example would be protesters, who often violate the law during various demonstrations, but might occasionally have strong ethical reasons for their violations.

The idea of natural law is generally in total disagreement with legal positivism because it postulates that moral concerns are more important than what is actually written down. In practice, most democratic governments end up enforcing laws in a way that's not quite in agreement with either extreme. For example, the law may require someone to be arrested for some crime that isn't actually supported by most citizens for ethical reasons. Once the person goes to court, however, a judge and a jury may decide to be very light with their sentencing, or even refuse to convict the person at all. In this way, there is a human element of natural law that sometimes serves as a moderation for the potential harshness of legal positivism.

Share
MyLawQuestions is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.
Discussion Comments
By Terrificli — On Mar 19, 2014

Perhaps the single best comparison of natural law to legal positivism is found in the Declaration of Independence of the U.S. Constitution. Thomas Jefferson provided a very concise statement of what natural law actually is by stating that we are all granted certain rights by our Creator including life, liberty and the pursuit of happiness.

Those rights were not granted by a government -- they are inherently ours to claim and no government that denies them is just. The legal positivist might argue that we have such rights only if they are recognized by the government and so provided.

Share
https://www.mylawquestions.com/what-is-legal-positivism.htm
Copy this link
MyLawQuestions, in your inbox

Our latest articles, guides, and more, delivered daily.

MyLawQuestions, in your inbox

Our latest articles, guides, and more, delivered daily.