Legal Definitions - positivistic jurisprudence

Positivistic jurisprudence, often referred to as legal positivism, is a school of thought in the philosophy of law that asserts that the existence and validity of law depend solely on its social source and the process by which it was created, rather than on its moral content or inherent justice. In simpler terms, it views law as a set of rules established by human beings, typically by a sovereign authority like a government, and enforced through a system of sanctions. A positivistic approach focuses on what the law is, as enacted and recognized, rather than what it should be based on ethical principles.

Here are some examples illustrating positivistic jurisprudence:

• Example 1: A New Traffic Ordinance

  A city council passes a new ordinance that prohibits all street parking on Main Street between 9 AM and 5 PM on weekdays to improve traffic flow. Many local business owners protest, arguing that the ordinance is unfair and will significantly harm their businesses by deterring customers. Despite these moral and economic objections, the ordinance is published and enforced by the city's police department.

  How it illustrates the term: Under positivistic jurisprudence, this ordinance is a valid law because it was enacted by the recognized legislative authority (the city council) through the proper legal process. Its validity does not depend on whether it is considered "fair," "just," or "good" by the business owners or the public; it simply is the law because it was properly made and is being enforced by the state.

• Example 2: Strict Application of a Contract Clause

  A software development company signs a contract with a client that includes a clause stating that any delays in project completion due to client-side issues will result in a penalty fee. The client later experiences unforeseen internal technical problems, causing significant delays. While the client believes it's morally unfair to be penalized for issues beyond their direct control, the software company invokes the penalty clause as per the signed agreement.

  How it illustrates the term: This scenario demonstrates positivistic jurisprudence because the validity of the penalty clause stems from its inclusion in a legally binding contract, which was voluntarily entered into by both parties and does not violate any existing statutes or precedents. The court, if involved, would likely uphold the clause based on the established legal rules of contract law, focusing on what was agreed upon (the law as it is) rather than on the perceived moral fairness of the outcome in this specific situation.

• Example 3: A Controversial Environmental Regulation

  A national environmental protection agency, acting within its statutory authority, issues a new regulation that mandates specific, costly pollution control measures for all manufacturing plants. Industry groups argue that the regulation is overly burdensome, economically damaging, and goes beyond what is truly necessary for environmental protection. They believe it is an "unjust" law.

  How it illustrates the term: From a positivistic perspective, the environmental regulation is legally valid and binding because it was issued by a legitimate government agency acting within the powers granted to it by existing legislation. The industry groups' moral or economic objections to the regulation do not negate its legal status. It is law because it was created through the proper legal channels by an authorized body, regardless of differing opinions on its wisdom or fairness.