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School of thought of philosophy of law and jurisprudence
the book by Norberto Bobbio
Legal positivism is a school of thought of philosophy of law and jurisprudence which holds that law is constructed from social facts, without regards to the merits of such law. It was developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. Some of the most prominent legal positivist writers of the 20th century have been Hans Kelsen, H. L. A. Hart, and Joseph Raz.

The term positivism is derived from Latin ponere, positum, meaning "to put". "Positive law" is that which is human made, i. e., defined formally.

In the positivist opinion, the source of a law is the establishment of that law by some legal authority that is recognised socially. The merits of a law are a separate issue: it may be a bad law by some standard, but if it was added to the system by a legitimate authority, it is still a law. The Stanford Encyclopedia of Philosophy summarises the distinction between merit and source: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc. ); as we might say in a more modern idiom, positivism is the view that law is a social construction." The teachings of the empiricists preceded systemization of a positivist method for problems of comprehension and analysis, which was later represented by legal positivism.

Traditionally, positivist theories of law have been developed by theorists applying the method of conceptual analysis to determine what is 'natural to say'. This approach assumes that legal concepts, being 'settled by the classificatory machinery of human thought', are 'amenable only to philosophical reflection'. Recently, researchers in the emerging field of experimental jurisprudence have challenged this assumption by exploring the relation between law and morality through systematic, psychological investigations of folk legal concepts. Legal positivism is related to empiricist and logical positivist theoretical traditions. Its methods include descriptive investigations of particular legal orders. Peter Curzon wrote that this approach "utilizes in its investigations the inductive method" which proceeds "from observation of particular facts to generalizations concerning all such facts."

The British legal positivism hitherto mentioned was founded on empiricism; by contrast, legal positivism was founded on the transcendental idealism of the German philosopher Immanuel Kant. Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose thesis of legal positivism is explained by Suri Ratnapala, who writes:

From this framework, Kelsen opined that the regression of validated norms cannot go on infinitely and must arrive at a first cause, which he called a (Grundnorm). The legal system is therefore a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree. For Kelsen, "sovereignty" was an arbitrary concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition." Kelsen attracted disciples among scholars of public law worldwide. These disciples developed schools of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In English speaking countries, H. L. A. Hart and Joseph Raz are perhaps the best known authors who were influenced by Kelsen, though both schools differed from Kelsen's theories in several respects.

Sometimes the term 'positivist' is used in a pejorative sense to condemn a doctrine according to which the law is always clear (legal formalism) and, however unjust, must be strictly enforced by officials and obeyed by subjects (so called 'ideological positivism'). When identified with legal formalism, legal positivism is opposed to legal realism. Legal positivism, understood as formalism, believes that in most cases the law provides definite guidance to its subjects and to judges; legal realists, on the other hand, often embrace rule scepticism, claiming that legal rules are indeterminate and do not constrain judicial discretion. However, both legal positivism and legal realism believe that law is a human construct. Moreover, most realists adopted some version of the positivist doctrine of the separation of law and morality. According to Brian Leiter, the view that positivism and realism are incompatible positions is probably largely due to Hart's critique of legal realism, but American legal realists were "tacit legal positivists" who acknowledged that all law stems from authoritative sources such as statutes and precedents. Most legal realists denied the existence of natural law, had a scientific approach to the law based on the distinction between describing and evaluating the law, and denied the existence of an objective (moral or political) obligation to obey the law; they therefore qualified as legal positivists. Methodological legal positivism is a value free, scientific approach to the study of law and, at the same time, is a way of conceiving the object of legal knowledge. It is characterised by a sharp distinction between real law and ideal law (or "law as fact" and "law as value", "law as it is" and "law as it should be") and by the conviction that legal science should be concerned with the former. Theoretical legal positivism is a cluster of theories about the nature of law related to a "statalist" conception of law.

Legal positivism in Germany has been famously rejected by Gustav Radbruch in 1946 where prosecution of Nazi supporters faced a challenge of assessing actions that were legally compliant with Nazi Germany law. Radbruch argued that when "discrepancy between the positive law and justice reaches a level so unbearable", it effectively becomes "erroneous law" and must not be followed unconditionally.