Legal Positivism and Legal Realism
Legal positivism should be distinguished from legal realism and such legal realists as Oliver Wendell Holmes, Jr. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American realists, positivists believe that in many instances the law provides reasonably determinate guidance to its subjects and to judges, at least in trial courts.
Niklas Luhmann asserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)." However, no positivist has ever asserted that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. As for as the moral validity of law, both positivists and realists maintain that this is a matter of moral principles. 'The power of decision' has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision.
Read more about this topic: Legal Positivism
Famous quotes containing the words legal and/or realism:
“Courage, then, for the end draws near! A few more years of persistent, faithful work and the women of the United States will be recognized as the legal equals of men.”
—Mary A. Livermore (1821–1905)
“Art is beauty, and every exposition of art, whether it be music, painting, or the drama, should be subservient to that one great end. As long as nature is a means to the attainment of beauty, so-called realism is necessary and permissable [sic], but it must be realism enhanced by idealism and uplifted by the spirit of an inner life or purpose.”
—Julia Marlowe (1866–1950)