Positivistic jurisprudence asserts that the validity of laws is solely determined by their origin from a government or other authoritative entity. The fairness of a law is irrelevant under this theory, as long as it emanates from an official source. This perspective diverges from other theories that advocate for laws to be grounded in notions of morality and ethics.
Positivistic jurisprudence is a theory that deems laws valid only if they originate from a recognized authority, such as a sovereign or determinate source. This means that laws must be created by a government or court to be considered valid. For instance, in a country with a positivistic legal system, a law passed by the government in accordance with the constitution is considered valid, while a law not passed by the government or not in accordance with the constitution is not considered valid. Positivistic jurisprudence differs from natural law, which asserts that laws should be based on moral principles and natural rights. Positivistic jurisprudence solely focuses on laws created by a recognized authority, regardless of their moral justness.
Positivistic jurisprudence is a legal theory that emphasizes the importance of written laws and legal rules as the primary sources of authority in a legal system.
Positivistic jurisprudence focuses on the actual laws and rules that are in place, while natural law theory emphasizes the idea of inherent moral principles that should guide legal decision-making.
In a positivistic legal system, judges are expected to interpret and apply the written laws and legal rules as they are written, without considering their own personal beliefs or moral values.
Critics of positivistic jurisprudence argue that it can lead to unjust outcomes if the written laws and legal rules are themselves unjust or discriminatory.
Positivistic jurisprudence generally discourages judicial activism, as judges are expected to adhere strictly to the written laws and legal rules, rather than using their own discretion to shape the law.
Critics argue that positivistic jurisprudence can lead to legal rigidity, injustice, and a failure to address changing social values and norms.
In a positivistic legal system, legal precedent is important, as it provides guidance for how laws and legal rules have been interpreted and applied in the past.
Many modern legal systems, including those in the United States, Canada, and many European countries, are based on positivistic jurisprudence.
Positivistic jurisprudence can impact individual rights by emphasizing the importance of written laws and legal rules, which may or may not protect certain rights.
Positivistic jurisprudence can coexist with other legal theories, but it may require a balancing act between the emphasis on written laws and legal rules and the recognition of other sources of legal authority.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 16th April 2024.
To help you cite our definitions in your bibliography, here is the proper citation layout for the three major formatting styles, with all of the relevant information filled in.
- Page URL:https://dlssolicitors.com/define/positivistic-jurisprudence/
- Modern Language Association (MLA):Positivistic Jurisprudence. dlssolicitors.com. DLS Solicitors. May 09 2024 https://dlssolicitors.com/define/positivistic-jurisprudence/.
- Chicago Manual of Style (CMS):Positivistic Jurisprudence. dlssolicitors.com. DLS Solicitors. https://dlssolicitors.com/define/positivistic-jurisprudence/ (accessed: May 09 2024).
- American Psychological Association (APA):Positivistic Jurisprudence. dlssolicitors.com. Retrieved May 09 2024, from dlssolicitors.com website: https://dlssolicitors.com/define/positivistic-jurisprudence/
Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.
All author posts