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Jan 3, 2003 · First published Fri Jan 3, 2003; substantive revision Tue Dec 17, 2019. Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus: The existence of law is one thing; its merit and demerit another.
Positive law refers to legal rules enacted by people in a political community or governing body. Positive law includes constitutions, statutes, and regulations. Positive law is different from natural law, which refers to universal principles and rules that properly govern moral human conduct.
altogether misleading, positive law stands in the same relation to the will from which it issues as do beings to the ground of being, prima causa, in Christian theology. As the command of a will, positive law is the actuality (Wirklichkeit) and effectiveness (Wirksamkeit) of the commanding power of the will. The will
May 27, 2001 · Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place.
Nov 18, 2002 · 1. The Basic Norm. The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation.
What is Positive Law? Legalism pervades Western culture. Whenever we wish to honor some pattern or regularity that we discover in nature, or any rule or norm we discern or devise in society, we call it a law.
In short, the “positive law model” works via analogy: a Fourth Amendment search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government ac-tually engaged in.2 As a result, the positive law model treats laws ap-plicable to private parties as a ceiling on what the Fourth Amendment can do.
