Editing Legal positivism (section)

== Compared to legal realism ==
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').<ref name="Stanford Green" /><ref name="Pino 1999" /><ref name="Guastini 2020" /> 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.<ref name="Leiter 2007 p. 73">{{cite book |last=Leiter |first=Brian |title=Naturalizing Jurisprudence |date=2007 |publisher=Oxford University Press |isbn=978-0-19-929901-0 |publication-place=Oxford; New York |page=73 |oclc=ocm74966557}}</ref> 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.<ref name="Postema 2011 p. 124">{{cite book |last=Postema |first=Gerald |title=A Treatise of Legal Philosophy and General Jurisprudence |date=2011-08-05 |publisher=Springer |isbn=978-90-481-8959-5 |publication-place=Dordrecht Heidelberg London New York |page=124}}</ref>

According to [[Brian Leiter]], the view that positivism and realism are incompatible positions is probably largely due to [[H. L. A. Hart|Hart]]'s critique of legal realism,<ref name="Leiter 2007 p. 68">{{cite book |last=Leiter |first=Brian |title=Naturalizing Jurisprudence |date=2007 |publisher=Oxford University Press |isbn=978-0-19-929901-0 |publication-place=Oxford; New York |page=68 |oclc=ocm74966557}}</ref> but American legal realists were "tacit legal positivists" who acknowledged that all law stems from authoritative sources such as statutes and precedents.<ref>{{cite book |last=Leiter |first=Brian |title=A Companion to Philosophy of Law and Legal Theory |date=2010 |publisher=Wiley-Blackwell |isbn=978-1-4051-7006-2 |editor-last=Patterson |editor-first=Dennis |publication-place=Chichester, West Sussex; Malden, MA |pages=249–266 |chapter=American legal realism |oclc=436311279}}</ref> 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) [[Political obligation|obligation to obey the law]]; they therefore qualified as legal positivists.<ref name="Guastini 2020" />