Legal Positivism Case Study

The idea that law is a reflection of society’s values and also in turn entrenches them is one of great controversy in the legal community. The legal theories of legal positivism and critical legal studies take particularly opposing analysis and views of the law, as well as how law impacts on society. In order to illustrate my answer, I will draw from the idea of the protection of private property, and the criminalization and subsequent decriminalization of homosexuality.

Legal positivism is particularly concerned with the validity of the law, and believes law is valid so long as it is created through societies legitimate avenues of law making. These avenues of law making are legitimate due to constitutional norms, and this chain of authorization

As such, CLS believes that law does reflect society’s values, but these values have been entrenched by the elite for their benefit.

From the late 1600’s, the protection of private property became a central focus of the legal institutions of England. Penalties were harsh, and became more widespread as private property law developed, in 1688, there were approximately 50 crimes punishable by capital punishment. By 1820, there was over 200. Legal positivism would say that these laws were valid, due to the way in which they were legislated, but passes no comment on whether these laws reflect society’s values, or in turn entrenches these values in society. Critical Legal Studies on the other hand believes that this is a prime example of law being used as a tool of oppression by the ruling elite. For much of this time period, those who had the vote were the propertied man, the class of society gaining the majority of power from the movement from a feudal system to a capitalist democratic one. Because of their legal voice in the form of the vote, they are able to exert influence on the legal system to

As with protection of private property, legal positivism simply comments that laws surrounding homosexuality are valid as long as they passed through the legitimate institutions of law making, and ignores whether these laws are good or bad, or reflective of social values. Critical Legal Studies however, believes that the criminalization of homosexuality is an example of the elite instilling its values on society at large- for example, members of parliament as well as judges are in the majority white, rich, straight men. As a result this privileged class of social elites has particular views on rights, and in turn uses the law as a tool to entrench these views into society at large, to continue their hegemonic domination of society itself and its values. This entrenchment of social values is clearly evident in how society and it’s values clearly change as the changes, when homosexuality is punishable by death, society as a whole vilifies the homosexual as a depraved perverted individual, but as the law becomes less strict in the 1960s in New Zealand, no longer punishable by death, but by 5-7 years imprisonment, society becomes slightly more lenient on homosexuality. When total decriminalization occurred, a rapid shift of social conscience took place- when suddenly people you deem good or morally righteous come out as gay, it changes your perspective of who ‘the homosexual’ is.