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Legal Positivism Legal positivism is a conceptual theory emphasizing the conventional nature of law. Its foundation consists in the pedigree thesis and separability thesis, which jointly assert that law is manufactured according to certain social conventions. Also associated with positivism is the view, called the discretion thesis, that judges make new law in deciding cases not falling clearly under a legal rule. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law. The word 'positivism' was probably first used to draw attention to the idea that law is "positive" or "posited," as opposed to being "natural" in the sense of being derived from natural law or morality The Pedigree Thesis The pedigree thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham, John Austin argues that the principal distinguishing...

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