Legal positivism

Legal positivism

Overview
Legal positivism is a school of thought of philosophy of law and jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...

 and John Austin
John Austin (legal philosopher)
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....

. However, the most prominent figure in the history of legal positivism is H.L.A. Hart, whose work The Concept of Law caused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law. In more recent years the central claims of legal positivism have come under significant attack from Ronald Dworkin.

It is difficult to summarize positivist thinking, but it is generally accepted that the central claim of legal positivism is the following:

"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits."

Legal positivists make some distinctive claims about what constitutes legal validity.
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Encyclopedia
Legal positivism is a school of thought of philosophy of law and jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...

 and John Austin
John Austin (legal philosopher)
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....

. However, the most prominent figure in the history of legal positivism is H.L.A. Hart, whose work The Concept of Law caused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law. In more recent years the central claims of legal positivism have come under significant attack from Ronald Dworkin.

It is difficult to summarize positivist thinking, but it is generally accepted that the central claim of legal positivism is the following:

"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits."

Legal validity and the sources of law


Legal positivists make some distinctive claims about what constitutes legal validity. It is difficult to improve on the following introduction offered by Leslie Green:
"Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. 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 was focusing on how to prevent possible conflict between concurrent rule(s) and successive norm(s), or foundation of law(s) in reality so that it tends to equate the authority to compose a law(s) to the authority to abolish a law(s). Why the tendency is critical is for that the claim simultaneously opens the possibility to directly access to the constitution by those who have not direct legal interest so that the possible vein claim could be readily abused by some political movement(s) which is not regarded as normal work(s) of any law system. However, it is also true that legal positivism contributes to improve the way of legal reasoning in term of more nomothetic (rule-making) approach to a case in turn. To the point, legal positivim and legal realism are similar to each other except to recognizing the source(s) of law and jurisprudene. The reason why legal positivism is popular to are largely depending on its assimiliation to the modern normal science and its acceptance of social class theory else."

The implications of being a legal positivist


Despite the central claim of legal positivism being so that legal validity depends on sources, 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 and 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 in fact apply it in a particular case. As Ian Gardner has said, legal positivism is 'normatively inert'; it is a theory of law not a theory of legal practice or 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
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

 and such legal realists as Oliver Wendell Holmes, Jr. The differences are both analytically and normatively important.
  • Both systems consider that law is a human construct, but unlike the American 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
Niklas Luhmann was a German sociologist, and a prominent thinker in sociological systems theory.-Biography:...

 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)." But 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. And as far as the moral validity of law is concerned, all 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.

Jeremy Bentham




In English-language philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. 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


The distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized 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 basic tenets of Austin's positivism are:
  • the law is command issued by the uncommanded commander—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 recognized it as one whom society obeys habitually. This sovereign can be a single person or a body, like sovereign-many - Parliament, comprising numerous individuals, each with varying 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, for instance contract law, Austin says failure to obey the rules does indeed result in sanctions; however, such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control other people. This definition of law was criticised by the 20th century legal philosopher H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....

, who said that it was analogous to a gunman enforcing his demands with a threat of violence.

Austin was greatly influenced in his philosophy by Jeremy Bentham.

Hans Kelsen


Kelsen's is considered a very strict and scientifically understood type of legal positivism. It is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. 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."

His theory has disciples among scholars of public law worldwide. His 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 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
The Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...

, 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
    Max Weber
    Karl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...

    '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
    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 within that system...

    , 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
    Ronald Dworkin
    Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

    , 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).

Joseph Raz


A pupil of H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....

, Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This 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.

See also



  • Constitution in exile
    Constitution in exile
    Constitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly not having been enforced according to their "original intent" or "original meaning"...

  • Critical legal studies
    Critical legal studies
    Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

  • Leslie Green
    Leslie Green (philosopher)
    Leslie Green is a leading scholar in the analytic philosophy of law, or jurisprudence as it is often called by academic lawyers.Born in Bridge of Weir, Renfrewshire, Scotland, and educated at Queen's University, Canada, and at Nuffield College, Oxford, he completed his dissertation—which...

  • International legal theory
  • Interpretivism (legal)
  • Georg Jellinek
    Georg Jellinek
    Georg Jellinek was an Austrian public lawyer. Along with Hans Kelsen and the Hungarian Felix Somlo he belonged to the group of Austrian Legal Positivists and was considered to be "the exponent of public law in Austria“.-Early life:From 1867, Jellinek studied law, history of art and philosophy at...


  • Judicial activism
    Judicial activism
    Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

  • Legal formalism
    Legal formalism
    Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...

  • Legal naturalism
    Legal naturalism
    Legal naturalism is a term coined by Olufemi Taiwo to describe a current in the social philosophy of Karl Marx which can be interpreted as one of Natural Law. Taiwo considered it the manifestation of Natural Law in a dialectical materialist context.-Books:...

  • Legal realism
    Legal realism
    Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

  • Legalism (Chinese philosophy)
    Legalism (Chinese philosophy)
    In Chinese history, Legalism was one of the main philosophic currents during the Warring States Period, although the term itself was invented in the Han Dynasty and thus does not refer to an organized 'school' of thought....

  • Libertarian theories of law
    Libertarian theories of law
    Libertarian theories of law build upon classical liberal and individualist anarchist doctrines.The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of...


  • Living Constitution
    Living Constitution
    The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...

  • Natural law
    Natural law
    Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

  • Philosophy of law
  • Positive law
    Positive law
    Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...

  • Rule according to higher law
    Rule according to higher law
    The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...

  • Strict constructionism
    Strict constructionism
    In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...

  • Translating "law" to other European languages


Further reading