Legal positivism

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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.

Contents

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]

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

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:

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.jpg
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:

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

Bust of Hans Kelsen in the Arkadenhof, University of Vienna Hans Kelsen (Nr. 17) - Bust in the Arkadenhof, University of Vienna - 0289.jpg
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 H.L.A.Hart.jpg
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:

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

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]

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]

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]

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

Related Research Articles

<span class="mw-page-title-main">Jurisprudence</span> Theoretical study of law

Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

<span class="mw-page-title-main">Philosophy of law</span> Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science, that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world.

<span class="mw-page-title-main">H. L. A. Hart</span> English legal philosopher (1907–1992)

Herbert Lionel Adolphus Hart was an English legal philosopher. He was the Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law, which has been hailed as "the most important work of legal philosophy written in the twentieth century". He is considered one of the world's foremost legal philosophers in the twentieth century.

Lon Luvois Fuller was an American legal philosopher best known as a proponent of a secular and procedural form of natural law theory. Fuller was a professor of law at Harvard Law School for many years, and is noted in American law for his contributions to both jurisprudence and the law of contracts. His debate in 1958 with the prominent British legal philosopher H. L. A. Hart in the Harvard Law Review was important in framing the modern conflict between legal positivism and natural law theory. In his widely discussed 1964 book The Morality of Law, Fuller argues that all systems of law contain an "internal morality" that imposes on individuals a presumptive obligation of obedience. Robert S. Summers said in 1984: "Fuller was one of the four most important American legal theorists of the last hundred years".

<span class="mw-page-title-main">John Austin (legal philosopher)</span> English legal philosopher (1790–1859)

John Austin was an English legal theorist who posthumously influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism. Austin opposed traditional approaches of "natural law", arguing against any need for connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.

<span class="mw-page-title-main">Hans Kelsen</span> Austrian jurist and legal philosopher (1881–1973)

Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the principal architect of the 1920 Austrian Constitution, which with amendments is still in operation. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced out of his university post after the Nazi seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and in 1940 he moved to the United States. In 1934, Roscoe Pound lauded Kelsen as "undoubtedly the leading jurist of the time". While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on social psychology and sociology.

Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as Reine Rechtslehre, and in 1960 in a much revised and expanded edition. The latter was translated into English in 1967 as Pure Theory of Law. The title is the name of his general theory of law, Reine Rechtslehre.

<i>The Concept of Law</i> 1961 book by H. L. A. Hart

The Concept of Law is a 1961 book by the legal philosopher H. L. A. Hart and his most famous work. The Concept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and morality—within the framework of analytic philosophy. Hart sought to provide a theory of descriptive sociology and analytical jurisprudence. The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are rules, and the relation between law and morality. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".

<span class="mw-page-title-main">Positive law</span> Laws that oblige or specify an action

Positive laws are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit.

Leslie John Green is a Scottish-Canadian legal scholar specialising in jurisprudence. He is Professor of the Philosophy of Law and Fellow of Balliol College, Oxford University, and Professor of Law and Distinguished Faculty Fellow at Queen's University, Kingston. A legal positivist, his research also focuses on political philosophy and constitutional theory.

The Hart–Fuller debate is an exchange between the American law professor Lon L. Fuller and his English counterpart H. L. A. Hart, published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.

Articles in social and political philosophy include:

This is an index of articles in jurisprudence.

Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham.

Jurisprudence of values or jurisprudence of principles is a school of legal philosophy. This school represents, according to some authors, a step in overcoming the contradictions of legal positivism and, for this reason, it has been considered by some authors as a post-positivism school. Jurisprudence of values is referred to in various works all over the world.

Theory of Legal Norms is a book, published in 1958, by the Italian jurist Norberto Bobbio about one of the ontological elements of foundations of law — the legal norm.

Legal Positivism is a book by the Italian jurist Norberto Bobbio about one of the ontological elements of foundations of law — the jusphilosophical school called juspositivism or legal positivism.

A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authorities issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide by, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, which regulates the conduct of people, and generality, which is binding on an indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding on them, such as soldiers and public officials.

Experimental jurisprudence (X-Jur) is an emerging field of legal scholarship that explores the nature of legal phenomena through psychological investigations of legal concepts. The field departs from traditional analytic legal philosophy in its ambition to elucidate common intuitions in a systematic fashion employing the methods of social science. Equally, unlike research in legal psychology, X-Jur emphasises the philosophical implications of its findings, such as whether, how, and in what respects the law's content is a matter of moral perspective. Whereas some legal theorists have welcomed X-Jur's emergence, others have expressed reservations about the contributions it seeks to make.

References

  1. 1 2 3 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. 1 2 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. 1 2 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. 1 2 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. 1 2 3 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. 1 2 3 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.

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