Legal Positivism - Legal Validity and The Sources of Law

Legal Validity and The Sources of Law

Legal positivists make some distinctive claims about what constitutes legal validity. It is difficult to improve on the following introduction offered by Leslie Green: "Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. 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 was focusing on how to prevent possible conflict between concurrent rule(s) and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to the authority to abolish a law(s). Why the tendency is critical is that the claim simultaneously opens the possibility for direct access to the constitution by those who have no direct legal interest so that a possible vain claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way(chain) of legal reasoning in terms of a more nomothetic (rule-making) approach to a case in turn. To the point, legal positivism and legal realism are similar to each other except in recognizing the source(s) of law and jurisprudence. The(A) reason why legal positivism is popular to (whom?) are (is) largely depending(ant) on its assimilation to(of) modern normal science and its acceptance of social class theory.

The implications of being a legal positivist:

Despite the central claim of legal positivism that legal validity depends on sources, legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, 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 provides no 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 to a separate investigation.