Legal Positivism vs. Legal Realism

Attribute	Legal Positivism	Legal Realism
Definition	Law is a set of rules created by human authority	Law is shaped by social forces and influenced by judges' personal beliefs
Source of Law	Legislation and legal precedent	Social norms and judicial discretion
Role of Judges	Apply the law as it is written	Interpret and shape the law based on societal values
Focus	On the formal structure of law	On the practical effects of law

Introduction

Legal positivism and legal realism are two prominent theories in the field of jurisprudence that offer different perspectives on the nature of law. While both theories seek to understand the role of law in society, they have distinct attributes that set them apart. In this article, we will compare the key attributes of legal positivism and legal realism to provide a comprehensive understanding of their differences.

Legal Positivism

Legal positivism is a theory that asserts that the validity of law is determined by social facts, rather than moral or ethical considerations. According to legal positivists, law is a set of rules created by a recognized authority, such as a government or legislature, and must be obeyed by individuals within that society. This theory emphasizes the importance of understanding law as a social construct that is separate from morality or ethics.

• Focuses on the source of law
• Emphasizes the importance of legal rules
• Separates law from morality
• Believes in the existence of a legal system
• Views law as a social construct

Legal Realism

Legal realism, on the other hand, is a theory that focuses on the practical effects of law and how it is applied in the real world. Legal realists argue that the law is not simply a set of rules, but rather a complex system that is influenced by various factors, such as social, economic, and political considerations. This theory emphasizes the importance of understanding how law operates in practice, rather than focusing solely on its theoretical foundations.

• Focuses on the practical effects of law
• Considers social, economic, and political factors
• Emphasizes the importance of understanding how law operates
• Critiques the idea of law as a neutral and objective system
• Views law as a tool for achieving social goals

Key Differences

One of the key differences between legal positivism and legal realism is their approach to the source of law. Legal positivism focuses on the authority that creates the law, such as a government or legislature, while legal realism considers the practical effects of law and how it is applied in society. This difference in perspective leads to contrasting views on the nature of law and its role in shaping social behavior.

Another important distinction between legal positivism and legal realism is their treatment of morality and ethics. Legal positivism argues that law is separate from morality and should be based on social facts, while legal realism acknowledges the influence of moral and ethical considerations on the development and application of law. This difference in perspective highlights the divergent views on the relationship between law and morality.

Furthermore, legal positivism and legal realism differ in their understanding of the legal system. Legal positivism views law as a structured system of rules created by a recognized authority, while legal realism sees law as a dynamic and evolving system that is shaped by social, economic, and political factors. This distinction in perspective leads to different interpretations of the nature of law and its impact on society.

Conclusion

In conclusion, legal positivism and legal realism offer distinct perspectives on the nature of law and its role in society. While legal positivism emphasizes the importance of understanding law as a social construct separate from morality, legal realism focuses on the practical effects of law and how it is applied in the real world. By comparing the attributes of legal positivism and legal realism, we can gain a deeper understanding of the complexities of the legal system and the diverse ways in which law influences social behavior.