Positivism

• Author: Jeffrey Lehman, Shirelle Phelps

Page 37

A school of JURISPRUDENCE whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a government body, including administrative, executive, legislative, and judicial bodies.

Positivism sharply separates law and morality. It is often contrasted with NATURAL LAW, which is based on the belief that all written laws must follow universal principles of morality, religion, and justice. Positivists concede that ethical theories of morality, religion, and justice may include aspirational principles of human conduct. However, positivists argue that such theories differ from law in that they are unenforceable and therefore should play no role in the interpretation and application of legislation. Thus, positivists conclude that as long as a written law has been duly enacted by a branch of government, it must be deemed valid and binding, regardless of whether it offends anyone's sense of right and wrong.

Positivism serves two values. First, by requiring that all law be written, positivism ensures that the government will explicitly apprise the members of society of their rights and obligations. In a legal system run in strict accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the government imposition of an unwritten legal obligation that was previously unknown and nonexistent. The DUE PROCESS Clauses of the Fifth and Fourteenth Amendments incorporate this positivist value by mandating that all persons receive notice of any pending legal actions against them so that they can prepare an adequate defense.

Second, positivism curbs judicial discretion. In some cases judges are not satisfied with the outcome of a case that would be dictated by a narrow reading of existing laws. For example, some judges may not want to allow a landlord to evict an elderly and sick woman in the middle of winter, even if the law authorizes such action when rent is overdue. However, positivism requires judges to decide cases in accordance with the law. Positivists believe that the integrity of the law is maintained through a neutral and objective judiciary that is not guided by subjective notions of EQUITY.

Positivism has been criticized for its harshness. Some critics of positivism have argued that not every law enacted by a...