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Legal Positivism

Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law.  Legal positivism does not base law on divine commandments, reason, or human rights.  As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.

Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.

Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutoryinterpretationin society.

The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality.