The Limits of Legal Positivism: A Critique of Formal Conception of Law and its Impact on Social Justice
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Themes
Legal positivism, formal conception of law, limits of legal positivism, law and morality, symbolic dimension of law, legitimacy of law, fundamental rights, social justice, instrumentalization of law, legal procedures, bureaucratic efficiency, justice and protection of rights, formal legitimacy, substantive legitimacy, principles of justice, human rights, commercial law, contract law, anti-terrorism legislation, individual freedoms, right to privacy, legal authority, social cohesion, regulatory function of law, Pellegrini, legal theory, law as a control tool
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Abstract
Discover the limitations of legal positivism and its impact on law's role in protecting fundamental rights and promoting social justice. This theory, criticized for its formal conception of law, reduces legal authority to a mere bureaucratic instrument, neglecting its symbolic dimension and moral significance. By focusing on procedural aspects, legal positivism overlooks the importance of substantive legitimacy, leading to the instrumentalization of law and erosion of its legitimacy. Examine how this approach can create barriers to education, reinforce inequalities, and restrict individual freedoms, highlighting the need for a more nuanced understanding of law that incorporates principles of justice and social values. Understand the consequences of a purely technical application of law and the importance of law's symbolic function in maintaining social cohesion and promoting human rights.
Extract
[...] The consequences of the positivist approach: instrumentalization and loss of the symbolic function Pellegrini criticizes the idea that law, in a positivist approach, becomes a simple instrument of social regulation. Social regulation refers to the set of mechanisms, rules, and norms put in place to organize, frame, and stabilize interactions between individuals in a society. Law is then used to organize and manage social relations, but loses its primary vocation to protect individuals against abuses of power. This utilitarian vision of law transforms it into a tool at the service of administrative and economic efficiency, without consideration for the principles of justice and equity. [...]
[...] This is a critical analysis of the positivist conception of law, in contrast with more anthropological visions. The author analyzes in the excerpt the positivist view of law, highlighting its limits as a too formal conception and its function that can be instrumentalized to legitimize power relations in society. Positivism is a theory that emerged in the 20th century, particularly in opposition to approaches to natural law. The rise of positivism coincides with the rise of modern states and the rationalization of power, where law becomes a tool for managing social relations. [...]
[...] To analyze this critique, we will first examine the foundations of legal positivism as well as its limitations before discussing the consequences of this theory on the symbolic and regulatory function of law (II). I. Legal Positivism: The Limits of This Theory and Formal Conception of Law Legal positivism, as criticized by Pellegrini, is based on the idea that law consists exclusively of norms adopted by the competent authority and according to legal procedures. This conception stems from a desire to separate law from moral or philosophical considerations, perceived as subjective and potentially sources of conflict. [...]
[...] The excerpt criticizes the positivist approach to law for its reduced and purely formal vision, which limits the ability of law to fulfill its regulatory and protective function. By ignoring values and the symbolic dimension, positivism risks transforming law into a tool of instrumentalization at the service of power. The text raises the question of the future of legal positivism in the face of emerging expectations for social justice and fundamental rights. Can we rethink the law to integrate more principles of justice and equity, while preserving its procedural rigor? [...]
[...] Positivist law, instead of correcting imbalances, can be diverted to serve the interests of those who control the development of norms. Tax laws, designed within a positivist framework, are often influenced by the lobbies of large corporations. They respect legislative procedures, but can favor tax loopholes that benefit the wealthy, thus accentuating inequalities. Legal positivism legitimizes in this case the reinforcement of a domination relationship as well as an economic imbalance between a privileged social class and to the detriment of a less privileged or even disadvantaged one. [...]
