Etymologically, The term positivism is derived from Latin ponere, positum, meaning “to put”. “Positive law” is that which is man-made, i.e., defined formally. Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin.While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of “positivism” as applied to law to include the contentions that:
- laws are commands of human beings;
- there is not any necessary relation between law and morality, that is, between law as it is and as it ought to be;
- analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions;
- a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations
Disagreement with Natural lawyers
Historically, legal positivism is in opposition to natural law’s theories of jurisprudence, with particular disagreement surrounding the natural lawyer’s claim that there is a necessary connection between law and morality.
SOURCE OF LAW, ACCORDING TO LEGAL POSTIVISTS
In the positivist opinion, the source of a law is the establishment of that law by some legal authority which is recognised socially. The merits of a law are a separate issue: it may be a ‘bad law’ by some standard, but if it was added to the system by a legitimate authority, it is still a law.
In the The Stanford Encyclopedia of Philosophy it is mentioned that;According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.”
Legal positivism does not claim that the laws so identified should be obeyed, or that necessarily there is value in having clear, identifiable rules. The laws of a legal system may be quite unjust, and the state may be quite illegitimate; as a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid does not provide any guidance as to whether the court should apply it in a particular case.
As John Gardner has said, legal positivism is “normatively inert”; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions for separate investigation.
Antecedents of legal positivism
The main antecedent of legal positivism is Empiricism, the thinkers of which range back as far as Sextus Empiricus, Thomas Hobbes, John Locke, George Berkeley, David Hume, and Auguste Comte. The main idea of empiricism is the claim that all knowledge of fact must be validated by sense experience or be inferred from propositions derived unambiguously from sense data. Further, empiricism is in opposition to metaphysics; for instance, Hume rejected metaphysics as mere speculation beyond what can be learnt from sense experience