Legal positivism is based on the separation of law and morality.
In order to know the meaning of the term iuspositivism , the first thing we are going to do is discover its etymological origin. In this case, we have to emphasize that it is a word that derives from Latin. Exactly we can indicate that it is the result of the sum of several lexical components of said language:
-The noun ius , which can be translated as “law” or “right.”
-The word positivus , which is equivalent to “explicitly stated.”
-The suffix -ism , which is used to indicate “doctrine”.
Concept of legal positivism
Legal positivism is called a philosophical current developed in the legal field, based on the separation between law and morality : for legal positivism, there is not necessarily a link between the two.
Although there are different approaches and trends, at a general level it can be said that legal positivism understands law as a set of norms established by human beings through the State . The process of establishing norms, which allow the organization of society and the discipline of individual behaviors, is developed according to formal procedures that are considered valid.
Legal positivism, therefore, differs from natural law . While positivism takes as its source of law the written legal system created by man that governs at a given moment, natural law maintains that there is a natural right of a universal nature that is supralegal and that emanates from the human condition itself.
For positivism, what matters are the laws themselves.
Law and morality
For legal positivism, there is no moral interpretation or consideration about what is fair or unfair when applying a norm. What is important is the norm itself, established by human beings in direct relation to certain social phenomena.
At this point it is important to take into account the aforementioned differences between law (according to the conception of legal positivism) and morality . Legal positivist law focuses on the external behaviors of people and is coercive (the State can force compliance); Morality, on the other hand, is linked to the intentions and autonomy of each individual and is not mandatory. Just as the norms of law according to legal positivism are objective, moral norms are subjective.
Types of legal positivism
In addition to everything indicated, we have to establish that within legal positivism there are, in turn, several types, among which we can highlight the following:
-Conceptual legal positivism . It is also known as methodological legal positivism and establishes that law is separated from morality in a conceptual way and that, therefore, it can be analyzed and identified without having to resort to the former.
-Ideological legal positivism is what determines that the law must be fulfilled and obeyed. And it starts from a very specific and firm conception of what justice is.
-Logical legal positivism , which refers to the fact that legal science is not empirical but rather normative.
Throughout history there are many different figures who have spoken out in favor of legal positivism and who have developed or defended it. Among these we can highlight some such as HLA Hart , Hans Kelsen , John Austin or the German jurist Rudolf von Ihering .