Positivism, however, is sometimes more credibly associated with the idea that legal philosophy is or should be values-neutral. Kelsen, for example, says, « The function of jurisprudence is not the evaluation of its subject, but its worthless description » (1960 [1967: 68]) and Hart described his work at one point as a « descriptive sociology » (1961 [2012: v]). But a description of what? « Law » is an anthropocentric theme that depends not only on our sensory incarnation, but also, as its necessary connections to morality, on our meaning and moral abilities, show. Legal types such as courts, decisions, and rules will not appear in a purely physical description of the universe, and may not even appear in a social description. (This may limit the prospects of « naturalized » jurisprudence; for a defense of the opposite view, see Leiter 1997). Legal positivism is not an « evaluation of its purpose », that is, an evaluation of the law. And to say that the existence of the law depends on social facts does not mean that it is a good thing that it is so (nor does it exclude it: see MacCormick 1985 and Campbell 1996). However, it does not follow that legal philosophy therefore offers a « worthless description » of its subject. There is, of course, a sense in which every description is loaded with value. It selects and systematizes only a subset of the infinite number of facts about its subject. Describing the law in such a way that it is based on common social rules means omitting many other truths about it, including, for example, truths about its connection to the demand for paper or tissue. What is the justification for prioritizing the former over the latter? Finnis (1980 [2011:3-19]) believes that the only possibility here has to do with the moral reasons we might have for wanting the right (that we answer « what? » by answering « why? ») and that the failure of methodical positivism, the failure to arrive at a worthless description of the subject, leads to the failure of legal positivism. But the question of social significance is not limited to our moral register and, above all, not only to its positive value (see Dickson 2001).

Others refer to the concept of conceptual or metaphysical truth, which sets the boundaries of the question that positivism attempts to answer (for discussion, see Raz 2004b). But no matter how these difficult questions need to be resolved, we should not expect legal positivism itself to contribute much to them. A thesis on the nature of law is not at the same time a thesis on how to understand the nature of law. The term « positive » may have been used to describe positive laws, as they are usually « imposed » on the citizens of a particular region. Some examples of such laws could be laws, court decisions and ordinances. Laws may be drafted and promulgated by state legislators, courts, and administrative agencies. Those who are physically present where these types of laws have governmental power are generally required to obey such laws. Instead, Hart argues that his legal theory is « a descriptive account of the peculiarities of law in general as a complex social phenomenon » (Hart 1994, p. 246). Hart presents his theory not as a representation of how people apply the concept of law, but as a representation of what distinguishes legal systems from other systems of social rules. According to Hart, it is the existence of a rule of recognition that establishes criteria of validity that distinguishes the law from other systems of social rules.

Therefore, according to Hart, Dworkin`s critique fails because it falsely characterizes positivism as a criteria-based explanation of the concept of law. [1] Why does the term « positive law » have a particular meaning in reference to the United States Code, and why is this term used despite the potential for confusion with the broader meaning given to the same term in philosophy of law? The answer includes a historical solution to a legal editorial problem. For generations, Congress has used the term « positive law » to translate a title of the Code as such into legal law. For example, section 1 of the Act of July 30, 1947 (1 U.S.C. Note prec. 1) provides in a relevant part: « Title 1 of the United States Code, entitled « General Provisions, » is codified and transposed into positive law. » (Emphasis added). Previous authors of the legislature chose the term « positive law » to capture the abstract distinction between a title of the Code, which was promulgated as such, and a title of the Code, which was not promulgated as such, but establishes enacted laws. More literally, this distinction could be expressed as an « adopted title » versus « non-adopted title », but these literal terms are problematic because they incorrectly indicate that the provisions set out in an « unencated title » of the Code have not been adopted. These provisions were adopted, but within the framework of a series of separate laws and not within the framework of a promulgated title (positive law). The specialized use of the term « positive law » in this situation reflects the abstract distinction between the two types of titles in the Code, and the use of the term in this way is now well established.

Thomas Aquinas merged human rights (lex humana) and positive law (lex posita or ius positivum). [3] [4] [5] However, there is a subtle distinction between them. While man-made law examines law from the position of its origins (i.e., who he postulated it), positive law examines law from the perspective of its legitimacy. The positive law is the law by the will of the one who made it, and therefore there can be a positive law as divine as there is a positive law made by man. The theory of positive law comes from the powers that promulgated it. This type of law is necessary because it is created or promulgated by the state to protect the rights of individuals, the governed, to settle civil disputes and, finally, to maintain order and security in society. (Translated literally, lex posita is postulated rather than positive law.) [3] In the Summa contra, Pagan Thomas himself writes about the divine positive law, where he says: « Si autem lex sit divinitus posita, auctoritate divina dispensatio fieri potest (if the law is given divinely, dispensation can be granted by divine authority) »[6] and « Lex autem a Deo posita est (But the law was established by God) ». [7] Martin Luther also recognized the idea of God`s positive law, as did Juan de Torquemada.

[8] Ethics is sometimes woven into positive law, but unethical behavior is not necessarily considered a violation of the law. For example, it may be considered unethical for a company to minimize profits for its own benefit. If such conduct is carried out under applicable positive law, it may not be unlawful. [2] « Positive law generally consists of a promulgated law – the codes, laws and regulations that are applied and enforced in court. The term is derived from the medieval usage of positum (Latin « established »), so the term positive law literally means the law established by human authority. Black`s Law Dictionary 1200 (8th edition 2004). Legal positivism is sometimes compared to natural law. Natural law usually refers to the natural order or a moral and ethical code that people share as human beings. Positive law is an artificial order and consists of rules of conduct that people impose on each other.

Natural law is inherent and may not require state enforcement, while positive laws are the legal laws that people usually expect. The reaction of right-wing positivism to this criticism has been to split into two camps, exclusive (or hard) and inclusive (or soft) legal positivism. Exclusive legal positivism insists that the norms of positive law must be based on authoritative sources. Nevertheless, the recognition rule may empower jurists to treat customary law, legal principles or moral arguments as part of the law. However, this does not include social or moral norms about the sources of law, but gives judges the power (and often discretion) to refer to extra-legal norms and thus create a new law.