Definition: The school of thought that believes that the only source of law is written law that is adopted, practiced and enforced in society by the government and legal systems.

Principles:

  • Written – so that all citizen known their obligations, rights and consequences
  • Curb judicial discretion – preventing emotional involvement

Important Contributors:

  • Jeremy Bentham – “greatest good for the greatest number” & Utilitarian
  • John Austin – Law is separate from justice and issued by the sovereign
  • H.L.A Hart – Separation Thesis

Separation thesis: having a legal right to do x doesn’t entail having a moral right to

do it, and vice versa; having a legal obligation to do something doesn’t entail

having a moral right to do it, and vice versa; having a legal justification to do

something doesn’t entail having a moral justification, and vice versa; etc.

The ultimate test of the validity of legal positivism is whether the presence of explicit rules deters undesirable behaviour.”

Pros:

  • Clearly outlines rights, freedoms and obligations
  • Sets a standard of Practice
  • Structures and stabilize society
  • Punishes all crimes regardless of motives
READ:
Argument between Legal versus Moral

Cons:

  • Very Strict
  • Does not consider individual and societal factors
  • More difficult to challenge and change laws

Case Study

  • Description: Tale- Yax was a homeless man stabbed to death after saving a women harassed by a knife-wielding attacker.
  • 25 people walked by without trying to get him help.
  • 1 person lifted the body and saw the blood but still simply left without calling 911.
  • 1 Person simply took a picture and walked away
  • No arrests were made.

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Cite this article as: William Anderson (Schoolworkhelper Editorial Team), "Legal Positivism," in SchoolWorkHelper, 2019, https://schoolworkhelper.net/legal-positivism/.
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