In many discussions of the nature of law the terms "legal positivism" and "natural law" are assumed to be the names of rival theories. In fact, each of these designations stands for a number of different and logically distinct doctrines, with the unfortunate result that in many disputes between "positivism" and "natural law" the precise point of conflict is unclear and the classification of a legal theorist as a "positivist" may afford very little indication of the nature of his theory. Thus, what is called the imperative theory of law, that is, the view that laws are commands, is usually treated as a central tenet of legal positivism; but although Jeremy Bentham and John Austin held this view, Hans Kelsen (usually regarded as the most uncompromising of modern legal positivists) held neither this view nor its corollary, that international law is not really law but a mere species of morality. Similarly, "legal positivism" is sometimes used as a designation for a thesis concerning the nature of moral judgments, including those made about the justice or injustice or the goodness or badness of human laws. This is the thesis (sometimes termed "noncognitivism") that such judgments cannot be established by reasoning but are merely expressions of human feelings or choices or "prescriptions." Kelsen held this view of moral judgments but Bentham and Austin did not. Bentham and Austin were both utilitarians who considered that moral judgments could be rationally established by the application of the test of utility, which according to Austin was also an "index" of God's commands.
A variety of other doctrines about law, besides those mentioned above, have been described as "positivist." These include the doctrine that although law and morals may often overlap or be causally related, there is no necessary or conceptual connection between them; the doctrine that judicial decisions are or should be deducible by logical means from legal rules and involve no choice or creative activity on the part of the judge; and the doctrine that there is an absolute moral obligation to obey the law, however morally iniquitous it may be.
The etymology of the word positivism and cognate expressions offers little guidance to its use in the philosophy of law. Since at least the fourteenth century, the expression "positive law" has been used to refer to laws laid down or made by human beings in contrast to natural or divine law, which is regarded as something discovered and not made by man. But the expression "positive law" has also long been used to refer to any law brought into being by a command or act of will and so includes the law of God as well as human legislation. More recently, the use of the expression "legal positivism" has been colored by the philosophical sense of "positivism" introduced by Auguste Comte. In this sense a "positivist" doctrine is one according to which nothing can be truthfully (or in later versions, meaningfully) said to exist unless it is in principle observable by human beings.
More important for legal theory than the etymology of the word is the identification and classification of the principal issues in relation to which philosophers of law or legal theorists have advanced views commonly styled positivist. Five such issues may be distinguished, and the discussion of these constitutes the remainder of this entry.
Positivism as a Theory of a Form of Legal Study
Bentham, Austin, and Kelsen, while differing as noted above on certain points, agreed that there is an important branch of legal study distinguished by two features: that it is not concerned with any ideal law or legal system but only with actual or existent law and legal systems; and that its concern with law is morally, politically, and evaluatively neutral. The object of this form of legal study is the clarification of the meaning of law, the identification of the characteristic structure of a legal system, and the analysis of pervasive and fundamental legal notions, such as right, duty, ownership, or legal personality. Bentham, Austin, and Kelsen were all concerned to distinguish such an "analytical" jurisprudence, as this form of legal study is now called, from critical or evaluative studies of the law, and they have stressed the importance of this distinction. However, none of these theorists—though the contrary is sometimes suggested—considered that analytical jurisprudence excluded critical or evaluative studies of the law or rendered them unimportant.
It should be observed that belief in the importance of analytical studies of the law does not strictly entail belief in other forms of legal positivism, though in fact it has usually been associated with one or more of these other forms. It is also true that not all morally or evaluatively neutral studies of the law need take an analytical form. Many sociological descriptions of the operation of law and society, and many sociological theories of the causal connection between law and other social phenomena are also evaluatively neutral, at least in intention. Hence, some of these, too, have at times been regarded as forms of positivism.
Positivism in the Definition of Law
The definition of law as the command of the "sovereign" is no doubt the most prominent example of a form of positivism. But the expression "positivist" is also used in a wider sense to include any doctrine according to which law is defined as the expression of human will or as manmade, even if it does not take the form of a command. Thus, both the doctrines known in American jurisprudence by the loose title of "legal realism," according to which only decisions of courts and the predictions of such decisions are law, and those theories of international law which insist that it is composed exclusively of rules originating in custom or in agreements between states are usually described as positivist. It is to be noted, however, that both Bentham and Austin, who defined law as the command of a sovereign, extended the notion of a command to include both customary law and judge-made law. For this purpose they invoked the idea of a "tacit," or "indirect," command resting on the principle that whatever the sovereign permits he commands.
Positivism as a Theory of the Judicial Process
Sometimes the term "legal positivism" is used to refer to the view that correct legal decisions are uniquely determined by preexisting legal rules and that the courts either do or should reach their decisions solely by logical deduction from a conjunction of a statement of the relevant legal rules and a statement of the facts of the case. This is sometimes referred to as the "automatic" or "slot-machine" conception of the judicial process; but it is doubtful whether any Anglo American writer who is usually classified as a positivist would subscribe to any such view. It is true, however, that Bentham and Austin thought that the area of choice allowed to judges by a system of case law was excessive and led to great uncertainty, and they claimed that this could and should be drastically reduced by classification and codification of the law in clear and detailed terms. But they were both well aware of the fact of judicial legislation and creative activity, and as noted above, they sought to reconcile this fact with their definition of law as the command of the sovereign by using the idea of a tacit command. The doctrine that a judge should not exercise choice in his decision of cases but should merely be the mouthpiece of previously existing law is to be found in the works of eighteenth-century writers not usually classed as positivists, such as Baron de Montesquieu's L'esprit des lois. They looked upon this doctrine as a corollary of the doctrine of the separation of powers and as a protection of the individual against arbitrary decisions, uncertainty, and privilege.
Positivism as a Theory of Laws and Morals
It seems that all writers classed as positivists have subscribed to the view that unless the law itself provides to the contrary, the fact that a legal rule is morally iniquitous or unjust does not entail that it is invalid or not law. This view may also be expressed as the claim that no reference to justice or other moral values enters into the definition of law. "The existence of law is one thing: its merit or demerit another" (Austin). "Legal norms may have any kind of content" (Kelsen). Such a denial of a necessary or definitional connection between law or legal validity and morality is perhaps the principal point of conflict between legal positivism and theories of natural law. For nearly all variants of the latter refuse to recognize as law or legally valid rules that violate certain fundamental moral principles. It is, however, important to remember that this denial of a necessary connection between law and morals is compatible with the recognition of many other important connections between them. Thus few, if any, positivists have denied that the development of the law has in fact been influenced by morality or that moral considerations should be taken into account by legislators and also by judges in choosing between competing interpretations or conflicting claims as to what the law is.
Positivism and the Obligation to Obey Law
If positivism has become a pejorative term, it is very largely because it has been identified by some critics with the claim that where a legal system is in operation, there is an unconditional moral obligation to obey the law, however unjust or iniquitous it may be. This claim may be based either on the view that there is a moral obligation to obey law as such or on the belief that the actual existence of a legal system, however oppressive or unjust, provides large numbers of human beings with a minimum of peace, order, and security and that these are values that no individual is morally justified in jeopardizing by resistance to the law. The German legal theorist K. M. Bergbohm, perhaps the best-known legal positivist in continental Europe in the nineteenth century, held this view; but though he in fact also subscribed to other forms of legal positivism described above, this view is logically quite independent of them. Utilitarian positivists, such as Bentham and Austin, held that resistance to law might be justified in extreme cases, but before this step was taken, careful calculations in terms of utility were necessary to ascertain that a balance of good over evil was likely to result. They criticized the doctrine of natural law and natural rights not because they believed that there was an unconditional obligation to obey the law, but because in their view these doctrines presented standing temptations for men to revolt without making such calculations of the consequences.
works by legal positivists
Austin, John. Essay on the Uses of the Study of Jurisprudence. London, 1863.
Austin, John. Lectures on Jurisprudence, or the Philosophy of Positive Law. London, 1863.
Austin, John. The Province of Jurisprudence Defined. London, 1832.
Bentham, Jeremy. A Fragment on Government. London: T. Payne, P. Elmsly, and E. Brooke, 1776.
Bentham, Jeremy. Introduction to the Principles of Morals and Legislation. London, 1789.
Bentham, Jeremy. The Theory of Legislation, 2 vols. London: K. Paul, Trench, Trubner, 1931.
Bergbohm, K. M. Jurisprudenz und Rechtsphilosophie. Leipzig: Duncker and Humblot, 1892.
Kelsen, Hans. The General Theory of Law and State. Cambridge, MA: Harvard University Press, 1945.
works on legal positivism
Fuller, Lon. "Positivism and Fidelity to Law." Harvard Law Review 71 (1958): 630–672.
Gray, J. C. The Nature and Sources of Law. New York, 1909.
Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961.
Holmes, O. W. "The Path of the Law." In his Collected Legal Papers. Boston, 1920.
Morison, W. L. "Some Myths about Positivism." Yale Law Journal 68 (1958): 217–222.
Pound, Roscoe. "Mechanical Jurisprudence." Columbia Law Review 8 (1908): 605ff.
Roguin, E. La science juridique pure. Paris: Sousanne, 1923.
Ross, Alf. On Law and Justice. London: Stevens, 1958.
Stone, J. The Province and Function of Law. London: Stevens, 1947.
Numerous articles critical of various forms of legal positivism may be found in the Natural Law Forum, published since 1955 by the Notre Dame Law School.
H. L. A. Hart (1967)
"Legal Positivism." Encyclopedia of Philosophy. . Encyclopedia.com. (August 17, 2018). http://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/legal-positivism
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