Legal Positivism - Legal Positivism and Legal Realism

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.