Legal Validity and The Sources of Law
Legal positivists make some distinctive claims about what constitutes legal validity. It is difficult to improve on the following introduction offered by Leslie Green: "Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction."
Legal positivism was focusing on how to prevent possible conflict between concurrent rule(s) and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to the authority to abolish a law(s). Why the tendency is critical is that the claim simultaneously opens the possibility for direct access to the constitution by those who have no direct legal interest so that a possible vain claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way(chain) of legal reasoning in terms of a more nomothetic (rule-making) approach to a case in turn. To the point, legal positivism and legal realism are similar to each other except in recognizing the source(s) of law and jurisprudence. The(A) reason why legal positivism is popular to (whom?) are (is) largely depending(ant) on its assimilation to(of) modern normal science and its acceptance of social class theory.
The implications of being a legal positivist:
Despite the central claim of legal positivism that legal validity depends on sources, legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation.
Read more about this topic: Legal Positivism
Famous quotes containing the words legal validity and, legal validity, legal, validity, sources and/or law:
“There are ... two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.”
—H.L.A. (Herbert Lionel Adolphus)
“There are ... two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.”
—H.L.A. (Herbert Lionel Adolphus)
“Lawyers are necessary in a community. Some of you ... take a different view; but as I am a member of that legal profession, or was at one time, and have only lost standing in it to become a politician, I still retain the pride of the profession. And I still insist that it is the law and the lawyer that make popular government under a written constitution and written statutes possible.”
—William Howard Taft (1857–1930)
“Once one is caught up into the material world not one person in ten thousand finds the time to form literary taste, to examine the validity of philosophic concepts for himself, or to form what, for lack of a better phrase, I might call the wise and tragic sense of life.”
—F. Scott Fitzgerald (1896–1940)
“The American grips himself, at the very sources of his consciousness, in a grip of care: and then, to so much of the rest of life, is indifferent. Whereas, the European hasn’t got so much care in him, so he cares much more for life and living.”
—D.H. (David Herbert)
“Nature’s law says that the strong must prevent the weak from living, but only in a newspaper article or textbook can this be packaged into a comprehensible thought. In the soup of everyday life, in the mixture of minutia from which human relations are woven, it is not a law. It is a logical incongruity when both strong and weak fall victim to their mutual relations, unconsciously subservient to some unknown guiding power that stands outside of life, irrelevant to man.”
—Anton Pavlovich Chekhov (1860–1904)