Originally from Alternatives to the High Cost of Litigation

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Legal Positivism is based upon the concept that law consists of the enforceable commands of government, and does not depend on the validity of other criteria, such as normative or religious values, or natural law. The concept embraces the idea that natural law does not override government dictates enunciated in statutes, regulations, rules and court precedents.

The paradigm causes the legal system to treat emotion as immaterial or disposable. Lawyers and judges pretend it is not there— and then doing so becomes impossible. Judges may scold the lawyers, witnesses and jury into ignoring it as being inconvenient, or a distraction to be surmounted by the power of reasoning and logic.

I was taught as a lawyer to suppress my own emotions. From day one of law school, we were trained that how we “feel” is irrelevant to the determination of the law, and the case at hand. Experienced lawyers soon recognize the legal fiction while privately paying homage to emotion to control it or otherwise accommodating it.