Legal Positivism

Legal positivism stands as a cornerstone in jurisprudence, offering a distinct perspective on the nature of law divorced from moral considerations. Rooted in the works of prominent legal philosophers such as Jeremy Bentham, John Austin, and HLA Hart, legal positivism posits that law is a product of human will, created by authoritative sources and enforced through social institutions. In this article, we delve into the essence of legal positivism, its key tenets, and its implications for understanding the role of law in society.

At the heart of legal positivism lies the separation thesis, which distinguishes between law and morality. According to legal positivists, the existence and validity of law do not depend on its moral content. Instead, laws derive their authority from recognised sources of legal power, such as legislative enactments, judicial decisions, or customary practices.

Legal positivists emphasise the importance of identifying the sources from which legal rules emanate. These may include written statutes, judicial precedents, customary practices, or the commands of a sovereign authority. The validity of a legal rule is determined solely by its compliance with established legal procedures and criteria, irrespective of its moral righteousness or ethical implications. Legal positivism holds that individuals' rights and obligations are contingent upon the existence of legal rules and their recognition by the relevant legal authorities. According to legal positivism, the existence of law is a matter of social fact, meaning that legal norms are identifiable through empirical observation of social practices and institutions.

By focusing on formal legal sources and procedures, legal positivism enhances the predictability and certainty of legal outcomes, providing stability and consistency within legal systems. Legal positivism recognises the role of interpretation and judicial discretion in applying legal rules, highlighting the importance of legal reasoning and judicial decision-making within a positivist framework. Legal positivism critiques natural law theory, which asserts a necessary connection between law and morality. Positivists argue that moral considerations should not dictate the content or validity of legal norms. Legal positivism facilitates legal reform and adaptation to changing social conditions by prioritising the authority of legal institutions and the rule of law over moral or ideological concerns.

Despite its enduring influence, legal positivism faces several criticisms and challenges. Critics argue that legal positivism neglects the moral dimensions of law, potentially leading to unjust or oppressive legal regimes. Some scholars contend that legal positivism's emphasis on formal legality fails to address substantive questions of justice and fairness within legal systems. Legal positivism's focus on legal formalism may overlook the cultural, historical, and contextual factors that shape legal norms and practices in diverse societies.

In conclusion, legal positivism offers a valuable framework for understanding law as a social phenomenon distinct from moral considerations. By emphasising the importance of legal sources, procedures, and institutions, legal positivism contributes to the analysis and interpretation of legal systems worldwide. However, its exclusive focus on formal legality and the separation of law from morality continues to spark debate among legal scholars and practitioners. Ultimately, the ongoing discourse surrounding legal positivism enriches our understanding of the complex interplay between law, society, and morality in the modern world.
Back to blog

UOL Case Bank

Upon joining, you become a valuable UOL student and gain instant access to over 2,100 case summaries. UOL Case Bank is constantly expanding. Speed up your revision with us now.

Subscribe Now

Where are our students from?

Yale University
Council of Europe
Baker Mckenzie 
University of Chicago
Columbia University
New York University
University of Michigan 
University College London (UCL)
London School of Economics (LSE)
King’s College London (KCL)
University of London
University of Manchester
University of Zurich
University of York
Brandeis University
University of Exeter
University of Sheffield
Boston University
University of Washington
University of Leeds
University of Law
Royal Holloway, University of London 
Birkbeck, University of London
SOAS, University of London
University of Kent
University of Hull
Queen’s University Belfast
Toronto Metropolitan University
Hong Kong University of Science and Technology
University of Buckingham
ESSEC Business School

  • Criminal Practice

    Diagrams and Charts

    Our carefully designed diagrams and charts will guide you through complex legal issues.

  • Criminal Law

    Clear and Succinct Definitions

    Key concepts are concisely defined to help you understand legal topics quickly.

  • Property Law

    Statutory Provisions

    Statutory provisions are provided side by side with legal concepts to help you swiftly locate the relevant legislation.

  • Public Law

    Case Summaries

    We have summarised important cases for you so that you don't need to read long and boring cases.

  • Evidence

    Rules and Exceptions

    Rules and exceptions are clearly listed so that you know when a rule applies and when it doesn't.

  • Company Law


    Legal terms and key concepts are explained at the beginning of each chapter to help you learn efficiently.

  • Case Law

    Case law is provided side by side with legal concepts so that you know how legal principles and precedents were established.

  • Law Exam Guide

    Law Essay Guide

    You will learn essential law exam skills and essay writing techniques that are not taught in class.

  • Law Exam Guide

    Problem Question Guide

    We will show you how to answer problem questions step by step to achieve first-class results.

  • Conflict of Laws

    Structured Explanations

    Complex legal concepts are broken down into concise and digestible bullet point explanations.

  • Legal System and Method

    Legal Research

    You will learn legal research techniques with our study guide and become a proficient legal researcher.

  • Jurisprudence and Legal Theory


    All essential concepts, principles, and case law are included so that you can answer exam questions quickly.