Legal Positivism

• Legal Positivism

  Grounds the law in the rules posited by the legislative, administrative, and judicial authorities and conceives the law as a political instrument of those authorities and their will.
• What are the propositions under legal positivsm?

  Legal positivism render entirely contingent any relationship between law and morality – it omits morality from the law. Thus, positivism cannot legitimise our law under two circumstances.
• What are the two reasons that positivism cannot legitimize our law?

  1. It is a variety of political realism. Thus, it can neither legitimize nor limit it.
  2. Positivism contradicts our settled convictions and expectations regarding the role of the judicial branch.
• What is meant by "political realism?"

  The view that moral norms do not govern the conduct of states and that state conduct is a matter entirely of the will and interests of those who happen to control the state.
• What is political realism in its jurisprudential form?

  Political realism resides in the view that law and politics are instruments of authoritative will that may (but not need to): express or conform to any principle of "good" governance.
• What is the issue of a state that is governed ONLY by the concept of political realism (a variety of legal positivism)?

  If the law is bound by nothing by political realism then the law is whatever the authorities say it is; such a state is a self-legitimating state, but not a legitimate state.
• What do contemporary positivists believe about legal positivism (a variety of political realism)?

  They claim that legal convention "may incorporate as a criteria of legal validity conformity with principles to [particular country's constitution] respecting the establishment of religion or abridgements of the right to vote."
• Why can't the view of contemporary positivists (a variety of political realism) save legitimizing the law?

  It fails to provide what is required of a normative theory of the law's foundation beyond the reach of the state to which all of its branches are bound and by which each of them is limited.
• How does positivism contradicts our settled convictions and expectations regarding the proper role of the judicial branch?

  According to positivists, our judges are "rule followers:" It is their distinctive and exclusive burden to accept, manage, and apply the rules laid down centrally by legislative and executive branches. Also, those laid down by their fellow judges in the decision history of law.
• What is the issue with the belief of positivists concerning judges?

  Although the positivists' belief on the judges is somewhat correct, it does not exhaust our expectations.

  
  

  This is because we should expect more from our judges in extraordinary circumstances: in times of legal ambiguity or abuse by political authorities it is important for judges to intervene and uphold the law with principled and restrained actions.