Legal positivism

For the book by Norberto Bobbio, see Legal Positivism (book).

Legal positivism is a school of thought of philosophy of law and jurisprudence which holds that law is constructed from social facts, without regards to the merits of such law. It was developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. Some of the most prominent legal positivist writers of the 20th century have been Hans Kelsen, H. L. A. Hart, and Joseph Raz.

Etymology

The term positivism is derived from Latin ponere, positum, meaning "to put". "Positive law" is that which is human-made, i.e., defined formally.^[1]

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 that 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: "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."^[1]

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.

History

Antecedents of legal positivism

The main antecedent of legal positivism is empiricism, the thinkers of which range back as far as Sextus Empiricus, Thomas Hobbes, John Locke, George Berkeley, David Hume, and Auguste Comte. 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.^[2] The teachings of the empiricists preceded systemization of a positivist method for problems of comprehension and analysis, which was later represented by legal positivism.^[3]

Methodology

Traditionally, positivist theories of law have been developed by theorists applying the method of conceptual analysis to determine what is 'natural to say'.^[4] This approach assumes that legal concepts, being 'settled by the classificatory machinery of human thought', are 'amenable only to philosophical… reflection'.^[5] 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.^[6][7]

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."^[3] These investigations eschew assessments of ethics, social welfare, and morality. 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."^{[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.^[3] This source-based conception aligns with the logical positivism of Rudolf Carnap, who rejected metaphysical conjecture about the nature of reality beyond observable events.

Thomas Hobbes and Leviathan

Thomas Hobbes, in his seminal work Leviathan, postulated the first detailed 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."^[8] There is, however, debate surrounding Hobbes's status as a legal positivist.^[8][9][10]

Jeremy Bentham

The English jurist and philosopher Jeremy Bentham 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.^[11]

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

John Austin partly emulated Bentham by writing The Province of jurisprudence Determined.^[12] 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, 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

Main articles: Hans Kelsen and Pure Theory of Law

 

Bust of Hans Kelsen in the Arkadenhof, University of Vienna

The British legal positivism hitherto mentioned was founded on empiricism; by contrast, 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 separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen,^{[original research?]} whose thesis of legal positivism is explained 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.^{[13][excessive quote]}

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 'basic norm' (German: 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 an arbitrary concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition."^{[citation needed]}

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 best-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

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'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 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, 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).

Five contentions

In 1958, Hart analyzed descriptions or definitions as given by different proponents of legal positivism as including one or more of these five contentions in different combinations:

• 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).^{[14][non-primary source needed]}

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.

Joseph Raz

Main article: Joseph Raz

A pupil of Hart, Joseph Raz 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.^[15]

Raz also argued, contrary to Hart,^[15] that the validity of a law can never depend on its morality.^[16]

Legal positivism and legal realism

Sometimes the term 'positivist' is used in a pejorative sense to condemn a doctrine according to which the law is always clear (legal formalism) and, however unjust, must be strictly enforced by officials and obeyed by subjects (so-called 'ideological positivism').^[1][17][18] When identified with legal formalism, legal positivism is opposed to legal realism. Legal positivism, understood as formalism, believes that in most cases the law provides definite guidance to its subjects and to judges; legal realists, on the other hand, often embrace rule scepticism, claiming that legal rules are indeterminate and do not constrain judicial discretion.^[19] However, both legal positivism and legal realism believe that law is a human construct. Moreover, most realists adopted some version of the positivist doctrine of the separation of law and morality.^[20]

According to Brian Leiter, the view that positivism and realism are incompatible positions is probably largely due to Hart's critique of legal realism,^[21] but American legal realists were "tacit legal positivists" who acknowledged that all law stems from authoritative sources such as statutes and precedents.^[22] Most legal realists denied the existence of natural law, had a scientific approach to the law based on the distinction between describing and evaluating the law, and denied the existence of an objective (moral or political) obligation to obey the law; they therefore qualified as legal positivists.^[18]

Methodological, theoretical and ideological legal positivism

In 1961 Norberto Bobbio argued that the phrase "legal positivism" is used with three different meanings, referring to different and largely independent doctrines, which he called "positivism as a way of approaching the study of law" (methodological legal positivism), "positivism as a theory or conception of law" (theoretical legal positivism) and "positivism as an ideology of justice" (Ideological legal positivism).^[23][24]

Methodological legal positivism is a value-free, scientific approach to the study of law and, at the same time, is a way of conceiving the object of legal knowledge. It is characterised by a sharp distinction between real law and ideal law (or "law as fact" and "law as value", "law as it is" and "law as it should be") and by the conviction that legal science should be concerned with the former. Theoretical legal positivism is a cluster of theories about the nature of law related to a "statalist" conception of law.^[17] They include the theory that the law is a set of commands issued by the sovereign authority, whose binding force is guaranteed by the threat of sanctions (coercitive imperativism); a theory of legal sources, in which statute law enjoys supremacy (legalism); a theory of the legal order, which is supposed to be a complete and coherent system of norms, free of gaps (lacunae) and contradictions (antinomies); and a theory legal interpretation, conceived of as a pure act of cognition: a mechanical and logical activity. Finally, ideological legal positivism is defined by Bobbio as the normative theory according to which positive law ought to be obeyed (ethical legalism).^[18][17][25]

Criticism of Legal Positivism

Legal positivism in Germany has been famously rejected by Gustav Radbruch 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
• Leslie Green
• International legal theory
• Interpretivism (legal)
• Georg Jellinek
• A.V. Dicey
• Judicial activism
• Legal formalism
• Legal naturalism
• Legal process school
• Legal realism
• Legalism (Chinese philosophy)
• Libertarian theories of law
• Living Constitution
• Natural law
• New legal realism
• Philosophy of law
• Positive law
• Rule according to higher law
• Strict constructionism
• Translating "law" to other European languages
• Jurisprudence of concepts
• Jurisprudence of interests
• Jurisprudence of values

References

1. Green, Leslie (2009). Zalta, Edward N. (ed.). "Legal Positivism". The Stanford Encyclopedia of Philosophy (Fall 2009 ed.). Metaphysics Research Lab, Stanford University.
2. Markie, Peter (2015-01-01). Zalta, Edward N. (ed.). Rationalism vs. Empiricism (Summer 2015 ed.). Metaphysics Research Lab, Stanford University.
3. Curzon, Peter (1998). Jurisprudence Lecture Notes. Cavendish Publishing. p. 82.
4. Marmor, Andrei (2004-01-22). Exclusive Legal Positivism. Oxford University Press. p. 119. doi:10.1093/oxfordhb/9780199270972.013.0003.
5. 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.
6. 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
7. 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.
8. Hampton, Jean (1986). Hobbes and the Social Contract Tradition. Cambridge: Cambridge University Press. p. 107.
9. Barry, Brian (1968). "Warrender and His Critics". Philosophy. 43 (164): 117–137. doi:10.1017/s0031819100009001. JSTOR 3748840. S2CID 171031269.
10. Murphy, Mark C. (1995). "Was Hobbes a Legal Positivist?". Ethics. 105 (4): 846–873. doi:10.1086/293755. JSTOR 2382114. S2CID 159842375.
11. Jeremy Bentham. "A Fragment on Government" (PDF). earlymoderntexts.com. Retrieved 12 April 2023.
12. Austin, John (1995) [1832]. The Province of Jurisprudence Determined. Cambridge University Press.
13. Ratnapala, Suri (2009). Jurisprudence. Cambridge University Press. p. 58. ISBN 978-0-511-59483-0.
14. H. L. A. Hart, "Positivism and the Separation of Law and Morals" (1958) 71 Harvard Law Review 593, 601–602.
15. Hart, H.L.A. (1994). The Concept of Law (2nd ed.). London: Oxford University Press.; superseded by 3rd edition 2012, edited by Leslie Green.
16. Raz, Joseph (1979). The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press. pp. 47–50.
17. Pino, Giorgio (1999). "The Place of Legal Positivism in Contemporary Constitutional States". Law and Philosophy. 18 (5). Springer: 513–536. JSTOR 3505143. Retrieved 2024-04-03.
18. Guastini, Riccardo (2020-10-31). "Legal Realism as a Positivistic Theory of Law". Isonomía - Revista de teoría y filosofía del derecho (53). doi:10.5347/isonomia.v0i53.452. ISSN 1405-0218.
19. Leiter, Brian (2007). Naturalizing Jurisprudence. Oxford ; New York: Oxford University Press. p. 73. ISBN 978-0-19-929901-0. OCLC 74966557.
20. Postema, Gerald (2011-08-05). A Treatise of Legal Philosophy and General Jurisprudence. Dordrecht Heidelberg London New York: Springer. p. 124. ISBN 978-90-481-8959-5.
21. Leiter, Brian (2007). Naturalizing Jurisprudence. Oxford ; New York: Oxford University Press. p. 68. ISBN 978-0-19-929901-0. OCLC 74966557.
22. Leiter, Brian (2010). "American legal realism". In Patterson, Dennis (ed.). A Companion to Philosophy of Law and Legal Theory. Chichester, West Sussex ; Malden, MA: Wiley-Blackwell. pp. 249–266. ISBN 978-1-4051-7006-2. OCLC 436311279.
23. Bobbio, Norberto (1966) [1961]. Il positivismo giuridico (in Italian). Torino: Giappichelli.
24. Bobbio, Norberto (2014) [1965]. Giusnaturalismo e positivismo giuridico (in Italian). Roma-Bari: Laterza. ISBN 978-88-581-1420-9.
25. Chiassoni, Pierluigi (2021-01-31). "From Savigny to Linguistic Analysis: Legal Positivism through Bobbio's Eyes". The Cambridge Companion to Legal Positivism. Cambridge University Press. p. 325–348. doi:10.1017/9781108636377.014. ISBN 978-1-108-63637-7.

Further reading

• Internet Encyclopedia of Philosophy entry by Kenneth Einar Himma
• Stanford Encyclopedia of Philosophy entry by Leslie Green
• Daniel Z. Epstein (2007). SSRN.com, Law's 'I'