Antecedents The main antecedent of legal positivism is
empiricism, the thinkers of which range back as far as
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. The teachings of the empiricists preceded systemization of a positivist method for problems of comprehension and analysis, which was later represented by 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." 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.
Jeremy Bentham The English jurist and philosopher
Jeremy Bentham was arguably the greatest 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 distinguished 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.
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, as, 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 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. A proponent of Germanic legal positivism is
Hans Kelsen, 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 Basic norm| (). The legal system is therefore a system of legal norms connected to one another by their common origin, like the branches and leaves of a tree. For Kelsen, "sovereignty" was an arbitrary concept: "We can derive, however, from this concept of sovereignty only 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 are perhaps the best-known authors who were influenced by Kelsen, though their legal philosophies differed from Kelsen's theories in several respects.
H. L. A. Hart Hart approved of Austin's theory of a sovereign but claimed that Austin's command theory failed in several important respects. Among the ideas Hart developed in
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, in
Taking Rights Seriously (1977),
A Matter of Principle (1985) and ''
Law's Empire'' (1986), criticized legal positivism in general and Hart's account of law in particular.
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). Historically, legal positivism is in opposition to
natural law's theories of jurisprudence, with particular disagreement surrounding the natural law claim that there is a necessary connection between law and morality.
Joseph Raz A pupil of Hart's,
Joseph Raz was important in continuing Hart's arguments of legal positivism after 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. Raz also argued, contrary to Hart, ==See also==