Legal Positivist Theory
In reaction to natural law theorists, came the Legal Positivist theory which holds that the legal and moral are completely separate realms. The validity of law is determined by its source and the soundness of the process of its enactment, not by a moral basis. Law school education is still largely based on a belief that there is a science of law. This was originated by Christopher Columbus Langdell, the dean of Harvard Law School in the late 19th Century. Langdell invented the case method of studying law. Its premise is that students of the law can study appellate decisions and derive from them legal principles which can then be applied to arrive at a CORRECT decision for future cases. Most law schools still use this teaching method, though it has been widely criticized. (Friedrichs, 82, Vago, p. 361) We will discuss in detail the merits and criticisms of law school education later in this course.
Two theorists, Herbert Spencer (a follower of the teachings of Charles Darwin) and William Graham Sumner subscribed to this theory. They believed that law should not be used to lift up the disadvantaged. It should resolve our disputes, and not resolve moral conflicts. It should merely be applied in a scientific fashion. Society will, therefore, function the most effectively.
|So if legal positivists are correct, then the Nazi's should not have been tried and convicted. They were leaders carrying out the law as it was enacted. Natural law theorists would, of course, say that their laws were in violation of human rights, but legal positivists could not make this argument. (Friedrichs, p.80)|
Judges following legal positivism apply the law as it stands. If the facts before the judge are similar enough to a case that has been decided, then the law of the precedent should be applied. Those who want to change fundamental law should do so through elected legislators. The role of the courts is to apply existing case law. If/when the issue of abortion goes back in front of the Supreme Court, a justice subscribing to legal positivism would apply the law as it exists, regardless of political predilections of the individual justice. Of course, had the majority of the justices been legal positivists in 1974, Roe v. Wade would likely have been decided differently.