Legal positivism is a school of thought of analytical jurisprudence, largely developed by eighteenth- and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism and logical positivism set the theoretical foundations for such developments to occur. The most prominent legal positivist writing in English has been H. L. A. Hart, who in 1958 found common usages of "positivism" as applied to law to include the contentions that:
- laws are commands of human beings
- there is no necessary connection between law and morals—that is, between law as it is and as it ought to be
- analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions
- a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations
- moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics)
Historically, legal positivism sits in opposition to natural law theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.
The term positivism is derived from ponere, positum, meaning, "to put". "Positive law" is that which is man-made, i.e., formally laid down.
Legal validity and the sources of law
In the positivist view, the "source" of a law is the establishment of that law by some socially recognised legal authority. The "merits" of a law are a separate issue: it may be a "bad law" by some standard, but if it was added to the system by a legitimate authority, it is still a law.
The Stanford Encyclopedia of Philosophy summarises the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction."
Legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation.
Legal positivism and legal realism
Legal positivism should be distinguished from legal realism and such legal realists. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American legal realists, positivists believe that in many instances, the law provides reasonably determinate guidance to its subjects and to judges, at least in trial courts.
Niklas Luhmann asserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)." However, no positivist has ever asserted that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. As for the moral validity of law, both positivists and realists maintain that this is a matter of moral principles. 'The power of decision' has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision.
Antecedents of legal positivism
The main antecedent of legal positivism is Empiricism, whose thinkers range back as far as Sextus Empiricus, John Locke, George Berkeley, David Hume, and Auguste Comte. Central to the empiricism is the claim that all knowledge of fact must be validated by sense experience or be inferred from propositions derived unambiguously from sense data. Further, empiricism stands in opposition to metaphysics; for instance, Hume rejected metaphysics as mere speculation beyond what can be learnt from sense experience. The teachings of the empiricists acted as a harbinger for a systematic version of a positivist approach to problems of comprehension and analysis, which was later mirrored in legal positivism.
Logical positivists, such as Rudolf Carnap and Alfred Jules Ayer paved the way for another important tenet of legal positivism, namely, that propositions and the use of words must be examined in order to understand reality. A sentence has literal significance if, and only if, it expresses something which is either tautologous or empirically verifiable.
With the empiricist and logical positivist theoretical influences borne in mind, the essence of legal positivism as a descriptive investigation of particular legal orders is revealed, which, as Peter Curzon wrote, 'utilises in its investigations the inductive method (i.e., proceeding from observation of particular facts to generalisations concerning all such facts).' During these investigations, matters of ethics, social policies and morality are eschewed; as Julius Stone wrote, it is concerned primarily with 'an analysis of legal terms, and an enquiry into the logical interrelations of legal propositions'. Further, law and its authority is seen as source-based; i.e., the validity of a legal norm depends not on the moral value attached thereto, but from the sources determined by a social community's rules and conventions. The source-based conception of law is reminiscent of the logical positivist, Carnap, who starkly rejected metaphysics on the basis that it attempts to interpret the nature of reality beyond the physical and experiential.
Thomas Hobbes and Leviathan
Thomas Hobbes, in his seminal work Leviathan, postulated the first clear notion of law based on the notion of sovereign power. As Hampton writes, "law is understood [by Hobbes] to depend on the sovereign's will. No matter what a law's content, no matter how unjust it seems, if it has been commanded by the sovereign, then and only then is it law.' There is, however, debate surrounding Hobbes's status as a legal positivist.
The English jurist and philosopher, Jeremy Bentham, is arguably the greatest historical figure in the British legal positivist movement. In An Introduction to the Principles of Morals and Legislation, Bentham laid the groundwork in for a theory of law that as the expressed will of a sovereign. Bentham made a sharp distinction between people he called:
- Expositors – those who explained what the law in practice was; and
- Censors – those who criticised the law in practice and compared it to their notions of what it ought to be.
The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors.
Bentham was also noted for calling natural law "nonsense upon stilts."
John Austin's Command Theory
John Austin followed in the theoretical footsteps of Bentham by writing The Province of jurisprudence Determined. It must be noted, however, that Austin departed from Bentham on a number of points, for example, by supporting the common law.
Differences aside, Austin embraced Hobbes's and Bentham's conception of law as a sovereign command, whose authority is recognised by most members of a society; the authority of which is enforced by the use of sanctions, but which is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents.
The three main tenets of Austin's Command Theory are:
- laws are commands issued by the uncommanded commander, i.e. the sovereign;
- such commands are enforced by sanctions; and
- a sovereign is one who is obeyed by the majority.
Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining 'a sovereign', Austin recognised it is one whom society obeys habitually. This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers. Austin's theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, such as contract law, Austin said that failure to obey the rules does result in sanctions; however, such sanctions are in the form of "the sanction of nullity."
Hans Kelsen and Germanic positivism
The British legal positivism hitherto mentioned was founded on empiricism; by contrast, Germanic legal positivism was founded on the transcendental idealism of the German philosopher, Immanuel Kant. Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as both separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose central thesis on legal positivism is unpacked by Suri Ratnapala, who writes:
'The key elements of Kelsen's theory are these. Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact. A stone thrown in the air comes down because of the force of Earth's gravity. There are seasons because the Earth's axis is tilted at 23.5 degrees. A norm, unlike a fact, is not about what there is but is about what ought to be done or not done. Whereas facts exist in the physical world, norms exist in the world of ideas. Facts are caused by other facts. Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught.) The norm that the thief ought to be punished exists because another norm says so. Not all norms are laws. There are also moral norms. Legal norms are coercive; moral norms are not.'
From this framework, Kelsen opined that the regression of validated norms cannot go on infinitely and must arrive at a First Cause, which he called a Grundnorm. The legal system is therefore a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.
For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition."
Kelsen attracted disciples among scholars of public law worldwide. These disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In English-speaking countries, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both schools differed from Kelsen's theories in several respects.
H. L. A. Hart
H. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but claimed that Austin's Command Theory failed in several important respects. In the book The Concept of Law, Hart outlined several key points: Among the many ideas developed in this book are:
- A critique of John Austin's theory that law is the command of the sovereign enforced by the threat of punishment.
- A distinction between the internal and external considerations of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.
- A distinction between primary and secondary legal rules, such that a primary rule governs conduct, such as criminal law and a secondary rules govern the procedural methods by which primary rules are enforced, prosecuted and so on. Hart specifically enumerates three secondary rules; they are:
- The Rule of Recognition, the rule by which any member of society may check to discover what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart claimed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm."
- The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.
- The Rule of Adjudication, the rule by which the society might determine when a rule has been violated and prescribe a remedy.
- A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).
A pupil of H. L. A. Hart, Joseph Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This has included editing a second edition of Hart's The Concept of Law, with an additional section including Hart's responses to other philosophers' criticisms of his work.
Raz has also argued, contrary to Hart, that the validity of a law can never depend on its morality. However, Raz has come to accept that law may depend upon morality in certain circumstances.
- H. L. A. Hart, "Positivism and the Separation of Law and Morals" (1958) 71 Harvard Law Review 593, 601-2.
- Green, Leslie, "Legal Positivism" in the Stanford Encyclopedia of Philosophy
- Luhmann, 1987
- Markie, Peter (2015-01-01). Zalta, Edward N., ed. Rationalism vs. Empiricism (Summer 2015 ed.).
- Curzon, Peter (1998). Jurisprudence Lecture Notes. Cavendish Publishing. p. 82.
- Hampton, Jean (1986). Hobbes and the Social Contract Tradition. Cambridge: Cambridge University Press. p. 107.
- Barry, Brian (1968). "Warrender and His Critics". Philosophy 43, 117-37, 131-32.
- C. Murphy, Mark (1995). "Was Hobbes a Legal Positivist". The University of Chicago Press, Ethics, Vol. 105, No. 4. JSTOR 2382114.
- Austin, John (1995) . The Province of Jurisprudence Determined. Cambridge University Press.
- Ratnapala, Suri (2009). Jurisprudence. Cambridge University Press. p. 58. ISBN 978-0-511-59483-0.
- Hart, H. L. A. (1994). The Concept of Law (2 ed.). London: Oxford UP.; superseded by 3rd edition 2012, edited by Leslie Green.
- Hart, H. L. A. (1994). The Concept of Law (2 ed.). London: Oxford UP.
- Raz, Joseph (1979). The Authority of Law: Essays on Law and Morality. Oxford: Clarendon P. pp. 47–50.
- Raz, Joseph (2009). Between Authority and Interpretation. Oxford: Oxford UP. pp. 168–169.