Schools of Jurisprudential Thought: Legal Positivism
Jurisprudence refers to the study of law or its philosophy. The science of law helps people to understand better the principles of law, their application, and their enforcement in society. There are two major schools of jurisprudential thought that are commonly applied in the world today. These schools of thought are legal positivism and natural law. Other common schools of jurisprudential thought include a historical school of law, the legal realist school of thought, and the CLS school of thought. As a matter of fact, these schools of thought analyze and explain law differently. Each of these fields of knowledge offers insights that have proven to be significant in enlightening people about the principles of law and how legal rules should be enforced in society. For instance, legal positivism considers law to be a sovereign command that can be enforced by the authority or sovereign that has formed it. On the other hand, natural law views law as something which should be put on a general moral guideline. This paper observes legal positivism as one of the most recognized schools of jurisprudential thought in the modern world.
Among other schools of jurisprudential thought, legal positivism is the one that appeals to me better for several reasons. First of all, unlike other schools of thought whose opinions about law are less convincing, this particular philosophical view offers a concise insight and explanation of what law is. More importantly, the implication that laws are valid, not because they are based on morality, but since they are establishments of the authority or sovereign in the society makes this school of thought more appealing. This philosophical school of thought shows the command of the law creators to be legitimate. The philosophy also emphasizes that laws cannot be based on aspects such as human rights or divine directives. According to this school of thought, scientific evidence offers the only precise and worthwhile focus and insight on the philosophy of law.
Legal Positivism is believed to have its originality in ancient political philosophy. The term ‘positivism’ was first applied to create emphasis on the belief that law is ‘positive’ and not ‘natural’ as it is indicated in the natural-law school of thought, The positive-law school of thought does not offer any directives for or against the obedience to legal terms. Moreover, the proponents of this philosophical school of thought will never judge laws based on aspects of humanity or justice, but simply on the manners in which the legal terms have been established. This fact may include the perception that magistrates can establish their terms in resolving disputes that have no clear definition in the existing legal guidelines.
As it would be observed, legal positivism has been a subject of persistent misunderstandings and criticisms for many years.1 Among the biggest controversies surrounding this particular school of thought is the claim that it is associated with many morality and immorality questions when it comes to how people should respond to some legal rules in society. There are also claims that this school of jurisprudential thought does not imply ethical justifications for law contents. It is patently clear that the study of law philosophy has become a rivalry between two major schools of thought in society: legal positivism and natural law. This would have the meaning that enforcers and followers of the two legal philosophies would tend to disagree with each other on some aspects. For example, the natural-law school of thought will often fail to recognize the command of law creators as legitimate, and this makes the opinions and observations of legal positivism a criticism of the natural law.
There is no doubt that the proponents of the natural-law school of jurisprudential thought fail to honor the legitimacy of legal rules that don’t comply with the principles of the natural law. In this respect, if a sovereign came up with a command that violates natural law, people will be morally justified in disobeying it. A good example here is whereby a gentleman in an African country refuse to offer his seat to a middle-aged white man and gives it to an elderly African woman instead. The dilemma in this incident is that the gentleman is faced with two legal rules that are determined by different schools of jurisprudential thought, but he goes for the option he considers to be morally correct. In this case, it may be the command of a lawmaker or a sovereign that African citizens should treat whites with respect, but the requirement that young people should treat old people with maximum respect conforms to the natural, universal, and divine laws. It is therefore out of this point of view that the gentleman had decided to offer his seat to the elderly African woman and not the white man. In this regard, the gentleman was forced by circumstances to neglect the legitimacy of the legal rule that Africans should honor and respect whites.
Sebok, Anthony. Legal positivism in American jurisprudence. United Kingdom: Cambridge University Press, 1998.