legal positivism


  • The most prominent legal positivist writer 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 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); • moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof
    (“noncognitivism” in ethics).

  • 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’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: o a rule of recognition, a rule by which any member of society may check to discover what the primary rules of the society are;
    o a rule of change, by which existing primary rules might be created, altered or abolished; o 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, 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).

  • “[citation needed] 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.

  • 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 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.

  • “[2] 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).

  • 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.

  • [1] Historically, legal positivism is in opposition to natural law’s theories of jurisprudence, with particular disagreement surrounding the natural lawyer’s claim that there
    is a necessary connection between law and morality.

  • [18] However, Raz came to accept that law may depend upon morality in certain circumstances.

  • Austin’s theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights.

  • [14] The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors.

  • [citation needed] Logical positivists such as Rudolf Carnap 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.

  • 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.

  • ); as we might say in a more modern idiom, positivism is the view that law is a social construction.

  • 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.

  • 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.

  • Whereas British legal positivists regard law as distinct from morals, their Germanic counterparts regard law as separate from both fact and morals.

  • Legal positivists believe that intellectual clarity is best achieved by leaving these questions for separate investigation.

  • 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.

  • [2] 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.

  • 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.

  • 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.

  • “[3] However, positivists do not assert that law is made valid by anyone’s decision.

  • [8] 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.

  • [15] However, Austin differed from Bentham in a number of ways, for example, by endorsing the common law.

  • [17] Raz also argued, contrary to Hart,[17] that the validity of a law can never depend on its morality.

  • 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).

  • In Hart’s opinion, the validity of law is a matter of the customary and collective practices of the courts.

  • 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

  • As Julius Stone wrote, legal positivist investigation is concerned primarily with “an analysis of legal terms, and an inquiry into the logical interrelations of legal propositions.


Works Cited

[‘1. H. L. A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593, 601–602.
2. ^ Jump up to:a b c Green, Leslie (2009). Zalta, Edward N. (ed.). “Legal Positivism”. The Stanford Encyclopedia of Philosophy (Fall
2009 ed.). Metaphysics Research Lab, Stanford University.
3. ^ Luhmann, 1987
4. ^ Gowans, Chris (2016). “Moral Relativism”. In Zalta, Edward N. (ed.). The Stanford Encyclopedia of Philosophy (Winter 2016 ed.). Metaphysics Research Lab, Stanford
5. ^ Markie, Peter (2015-01-01). Zalta, Edward N. (ed.). Rationalism vs. Empiricism (Summer 2015 ed.). Metaphysics Research Lab, Stanford University.
6. ^ Jump up to:a b c d e Curzon, Peter (1998). Jurisprudence Lecture Notes. Cavendish
Publishing. p. 82.
7. ^ Marmor, Andrei (2004-01-22). Exclusive Legal Positivism. Oxford University Press. p. 119. doi:10.1093/oxfordhb/9780199270972.013.0003.
8. ^ Gardner, John (2005). “Book Review: Nicola Lacey, A Life of H.L.A. Hart: the Nightmare
and the Noble Dream”. Law Quarterly Review. 121: 329, 331.
9. ^ Donelson, Raff; Hannikainen, Ivar R. (2020-04-09), “Fuller and the Folk”, Oxford Studies in Experimental Philosophy Volume 3, Oxford University Press, pp. 6–28, doi:10.1093/oso/9780198852407.003.0002,
ISBN 978-0-19-885240-7, retrieved 2022-09-14
10. ^ Flanagan, Brian; Hannikainen, Ivar R. (2022-01-02). “The Folk Concept of Law: Law Is Intrinsically Moral”. Australasian Journal of Philosophy. 100 (1): 165–179. doi:10.1080/00048402.2020.1833953.
ISSN 0004-8402. S2CID 228861665.
11. ^ Jump up to:a b Hampton, Jean (1986). Hobbes and the Social Contract Tradition. Cambridge: Cambridge University Press. p. 107.
12. ^ Barry, Brian (1968). “Warrender and His Critics”. Philosophy. 43 (164):
117–137. doi:10.1017/s0031819100009001. JSTOR 3748840. S2CID 171031269.
13. ^ Murphy, Mark C. (1995). “Was Hobbes a Legal Positivist?”. Ethics. 105 (4): 846–873. doi:10.1086/293755. JSTOR 2382114. S2CID 159842375.
14. ^ Jeremy Bentham. “A Fragment
on Government” (PDF). Retrieved 12 April 2023.
15. ^ Austin, John (1995) [1832]. The Province of Jurisprudence Determined. Cambridge University Press.
16. ^ Ratnapala, Suri (2009). Jurisprudence. Cambridge University Press.
p. 58. ISBN 978-0-511-59483-0.
17. ^ Jump up to:a b Hart, H.L.A. (1994). The Concept of Law (2nd ed.). London: Oxford University Press.; superseded by 3rd edition 2012, edited by Leslie Green.
18. ^ Raz, Joseph (1979). The Authority of Law: Essays
on Law and Morality. Oxford: Clarendon Press. pp. 47–50.
19. ^ Raz, Joseph (2009). Between Authority and Interpretation. Oxford: Oxford University Press. pp. 168–169.
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