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Legal positivism (as understood in the
Anglosphere The Anglosphere is a group of English-speaking nations that share historical and cultural ties with England, and which today maintain close political, diplomatic and military co-operation. While the nations included in different sources vary, t ...
) is a school of thought of
analytical jurisprudence Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how ...
developed largely by legal philosophers during the 18th and 19th centuries, such as
Jeremy Bentham Jeremy Bentham (; 15 February 1748 ld Style and New Style dates, O.S. 4 February 1747– 6 June 1832) was an English philosopher, jurist, and social reformer regarded as the founder of modern utilitarianism. Bentham defined as the "fundam ...
and John Austin. While Bentham and Austin developed legal positivist theory,
empiricism In philosophy, empiricism is an epistemological theory that holds that knowledge or justification comes only or primarily from sensory experience. It is one of several views within epistemology, along with rationalism and skepticism. Empir ...
provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been
H. L. A. Hart Herbert Lionel Adolphus Hart (18 July 190719 December 1992), known simply as H. L. A. Hart, was an English legal philosopher. He was Professor of Jurisprudence (University of Oxford), Professor of Jurisprudence at Oxford University an ...
, 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 not any necessary relation between law and morality, 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 (
legal formalism Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formali ...
); * moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics). Historically, legal positivism is in opposition to
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
's theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.


Etymology

The term ''positivism'' is derived from Latin ''ponere'', ''positum'', meaning "to put". "Positive law" is that which is man-made, i.e., defined formally.


Legal validity and the sources of law

In the positivist opinion, the source of a law is the establishment of that law by some legal authority which is recognised socially. 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 obeyed, or that necessarily 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 does not provide any 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 for separate investigation.


Legal positivism and legal realism

Legal positivism is distinct from
legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. 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 Niklas Luhmann (; ; December 8, 1927 – November 6, 1998) was a German sociologist, philosopher of social science, and a prominent thinker in systems theory. Biography Luhmann was born in Lüneburg, Free State of Prussia, where his father's ...
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, positivists do not assert 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.


History


Antecedents of legal positivism

The main antecedent of legal positivism is
Empiricism In philosophy, empiricism is an epistemological theory that holds that knowledge or justification comes only or primarily from sensory experience. It is one of several views within epistemology, along with rationalism and skepticism. Empir ...
, the thinkers of which range back as far as
Sextus Empiricus Sextus Empiricus ( grc-gre, Σέξτος Ἐμπειρικός, ; ) was a Greek Pyrrhonist philosopher and Empiric school physician. His philosophical works are the most complete surviving account of ancient Greek and Roman Pyrrhonism, and ...
,
Thomas Hobbes Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book '' Leviathan'', in which he expounds an influ ...
,
John Locke John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Enlightenment thinkers and commonly known as the "father of liberalism". Considered one of ...
,
George Berkeley George Berkeley (; 12 March 168514 January 1753) – known as Bishop Berkeley ( Bishop of Cloyne of the Anglican Church of Ireland) – was an Anglo-Irish philosopher whose primary achievement was the advancement of a theory he called "immate ...
,
David Hume David Hume (; born David Home; 7 May 1711 NS (26 April 1711 OS) – 25 August 1776) Cranston, Maurice, and Thomas Edmund Jessop. 2020 999br>David Hume" '' Encyclopædia Britannica''. Retrieved 18 May 2020. was a Scottish Enlightenment ph ...
, and
Auguste Comte Isidore Marie Auguste François Xavier Comte (; 19 January 1798 – 5 September 1857) was a French philosopher and writer who formulated the doctrine of positivism. He is often regarded as the first philosopher of science in the modern sense ...
. The main idea of 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 is 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 preceded systemization of a positivist method for problems of comprehension and analysis, which was later represented by legal positivism. For example, John Locke's empiricism did not prevent him from being an advocate of natural law.
Logical positivists Logical positivism, later called logical empiricism, and both of which together are also known as neopositivism, is a movement in Western philosophy whose central thesis was the verification principle (also known as the verifiability criterion of ...
such as
Rudolf Carnap Rudolf Carnap (; ; 18 May 1891 – 14 September 1970) was a German-language philosopher who was active in Europe before 1935 and in the United States thereafter. He was a major member of the Vienna Circle and an advocate of logical positivism. ...
and A. J. Ayer suggested 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.


Legal positivism


Methodology

Traditionally, positivist theories of law have been developed by theorists applying the method of conceptual analysis to determine what is 'natural to say'. This approach assumes that legal concepts, being ‘settled by the classificatory machinery of human thought’, are ‘amenable only to philosophical… reflection’. Recently, researchers in the emerging field of experimental jurisprudence have challenged this assumption by exploring the relation between law and morality through systematic, psychological investigations of folk legal concepts. Legal positivism is related to empiricist and logical positivist theoretical traditions. Its methods include descriptive investigations of particular legal orders. Peter Curzon wrote that this approach "utilizes in its investigations the inductive method" which proceeds "from observation of particular facts to generalizations concerning all such facts." These investigations eschew assessments of ethics, social welfare, and morality. As
Julius Stone Julius Stone (7 July 1907 – 1985) was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and thereafter a visiting Professor of Law at the University of New South Wales and concurrently Dist ...
wrote, legal positivist investigation is concerned primarily with "an analysis of legal terms, and an inquiry into the logical interrelations of legal propositions." Further, law and its authority are framed as source-based: the validity of a legal norm depends not on its moral value, but on the sources determined by a social community's rules and conventions. This source-based conception aligns with the logical positivism of
Rudolf Carnap Rudolf Carnap (; ; 18 May 1891 – 14 September 1970) was a German-language philosopher who was active in Europe before 1935 and in the United States thereafter. He was a major member of the Vienna Circle and an advocate of logical positivism. ...
, who rejected metaphysical conjecture about the nature of reality beyond observable events.


Thomas Hobbes and ''Leviathan''

Thomas Hobbes Thomas Hobbes ( ; 5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book '' Leviathan'', in which he expounds an influ ...
, in his seminal work ''
Leviathan Leviathan (; he, לִוְיָתָן, ) is a sea serpent noted in theology and mythology. It is referenced in several books of the Hebrew Bible, including Psalms, the Book of Job, the Book of Isaiah, the Book of Amos, and, according to some ...
'', postulated the first detailed notion of law based on the notion of sovereign power. As Hampton writes, "law is understood
y Hobbes Y, or y, is the twenty-fifth and penultimate letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. According to some authorities, it is the sixth (or seventh ...
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.


Jeremy Bentham

The English jurist and philosopher
Jeremy Bentham Jeremy Bentham (; 15 February 1748 ld Style and New Style dates, O.S. 4 February 1747– 6 June 1832) was an English philosopher, jurist, and social reformer regarded as the founder of modern utilitarianism. Bentham defined as the "fundam ...
is arguably the greatest historical British legal positivist. In ''An Introduction to the Principles of Morals and Legislation'', Bentham developed a theory of law as the expressed will of a sovereign. In 'A Fragment on Government', Bentham made a distinction between the following types of people: * ''Expositors'' – those who explained what the law in practice was; * ''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 terming natural law "nonsense upon stilts".


John Austin's command theory

John Austin partly emulated Bentham by writing ''The Province of jurisprudence Determined''. However, Austin differed from Bentham in a number of ways, for example, by endorsing 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; * a sovereign is one who is obeyed by the majority. Austin considered law to be commands from a sovereign that are enforced by a 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 A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...
, 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 Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...
. Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as separate from both fact and morals. The most famous proponent of Germanic legal positivism is
Hans Kelsen Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise ...
, whose thesis of legal positivism is explained by Suri Ratnapala, who writes: 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'' (basic norm). 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 an arbitrary 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 Joseph Raz (; he, יוסף רז; born Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent mos ...
are perhaps the best-known authors who were influenced by Kelsen, though both schools differed from Kelsen's theories in several respects.


H. L. A. Hart

Hart liked Austin's theory of a sovereign, but claimed that Austin's command theory failed in several important respects. Among the ideas developed in Hart's book '' The Concept of Law'' (1961) are: * a critique of Austin's theory that a law is a command of the sovereign enforced by a threat of punishment; * a distinction between internal and external consideration of law and rules, influenced by
Max Weber Maximilian Karl Emil Weber (; ; 21 April 186414 June 1920) was a German sociologist, historian, jurist and political economist, who is regarded as among the most important theorists of the development of modern Western society. His ideas p ...
's distinction between legal and sociological perspectives on law; * a distinction between primary and secondary legal rules, such that a primary rule, such as a criminal law, governs conduct, and secondary rules provide methods by which primary rules are recognized, changed or judicially applied. Hart identifies three types of secondary rule: ** a
rule of recognition A central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or "what counts as law") with ...
, a rule by which any member of society may check to discover what the primary rules of the society are; ** a rule of change, by which existing primary rules might be created, altered or abolished; ** a rule of adjudication, by which the society might determine when a rule has been violated and prescribe a remedy; * a late reply (1994 edition) to
Ronald Dworkin Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
, who criticized legal positivism in general and especially Hart's account of law in ''
Taking Rights Seriously ''Taking Rights Seriously'' is a 1977 book about the philosophy of law by the philosopher Ronald Dworkin. In the book, Dworkin argues against the dominant philosophy of Anglo-American legal positivism as presented by H. L. A. Hart in ''The Conce ...
'' (1977), ''A Matter of Principle'' (1985) and ''
Law's Empire ''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...
'' (1986).


Joseph Raz

A pupil of Hart,
Joseph Raz Joseph Raz (; he, יוסף רז; born Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent mos ...
was important in continuing Hart's arguments of legal positivism since Hart's death. This included editing in 1994 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.; superseded by 3rd edition 2012, edited by
Leslie Green Leslie William Green (6 February 1875 – 31 August 1908) was an English architect. He is best known for his design of iconic stations constructed on the London Underground railway system in central London during the first decade of the 20t ...
.
Raz also argued, contrary to Hart, that the validity of a law can ''never'' depend on its morality. However, Raz came to accept that law may depend upon morality in certain circumstances. Legal positivism in Germany has been famously rejected by
Gustav Radbruch Gustav Radbruch (21 November 1878 – 23 November 1949) was a German legal scholar and politician. He served as Minister of Justice of Germany during the early Weimar period. Radbruch is also regarded as one of the most influential legal philoso ...
in 1946 where prosecution of Nazi supporters faced a challenge of assessing actions that were legally compliant with Nazi Germany law. Radbruch argued that when "discrepancy between the positive law and justice reaches a level so unbearable", it effectively becomes "erroneous law" and must not be followed unconditionally.


See also

* Constitution in exile *
Critical legal studies Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
*
Leslie Green Leslie William Green (6 February 1875 – 31 August 1908) was an English architect. He is best known for his design of iconic stations constructed on the London Underground railway system in central London during the first decade of the 20t ...
*
International legal theory International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approach ...
* Interpretivism (legal) *
Georg Jellinek Georg Jellinek (16 June 1851 – 12 January 1911) was a German public lawyer and was considered to be "''the'' exponent of public law in Austria“. Life From 1867, Jellinek studied law, history of art and philosophy at the University of Vienna ...
*
A.V. Dicey Albert Venn Dicey, (4 February 1835 – 7 April 1922), usually cited as A. V. Dicey, was a British Whig jurist and constitutional theorist. He is most widely known as the author of ''Introduction to the Study of the Law of the Constitution ...
*
Judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
*
Legal formalism Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formali ...
* Legal naturalism * Legal process school *
Legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...
*
Legalism (Chinese philosophy) Legalism or ''Fajia'' is one of the six classical schools of thought in Chinese philosophy. Literally meaning "house of (administrative) methods / standards (法, Fa)", the Fa "school" represents several branches of "men of methods", in the ...
* Libertarian theories of law *
Living Constitution The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
*
Natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
* New legal realism *
Philosophy of law Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal val ...
*
Positive law Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb ''to posit ...
* Rule according to higher law *
Strict constructionism In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution). Strict sense of the term ...
*
Translating "law" to other European languages The translation of "law" to other European languages faces several difficulties. In most European languages, as well as some others influenced by European languages, there are two different words that can be translated to English as "law". For the ...
* Jurisprudence of concepts *
Jurisprudence of interests In European legal history and the philosophy of law, the jurisprudence of interests is a doctrine of legal positivism of the early 20th century, according to which a written law must be interpreted to reflect the interests it is to promote. The ma ...
*
Jurisprudence of values Jurisprudence of values or jurisprudence of principles is a school of legal philosophy. This school represents, according to some authors, a step in overcoming the contradictions of legal positivismIt is a school that has, since the end of the 19th ...


References


Further reading


Internet Encyclopedia of Philosophy entry
by Kenneth Einar Himma
Stanford Encyclopedia of Philosophy entry
by
Leslie Green Leslie William Green (6 February 1875 – 31 August 1908) was an English architect. He is best known for his design of iconic stations constructed on the London Underground railway system in central London during the first decade of the 20t ...
* Daniel Z. Epstein (2007)
SSRN.com
Law's 'I' {{Authority control Theories of law Positivism Philosophy of law