Legal Positivism

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Legal Positivism

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Olivecrona (1971: 141) noted that, when nineteenth-century positivists ‘wanted
to make a clean break with natural law doctrine, they ceased to cite the old
authorities. But as a matter of course they took over their fundamental concepts.’

David and Brierley (1978: 2) commented on the shift from a theoretical natural law focus towards the more practical concerns of legal positivism:

“For many previous centuries, the science of law was devoted to discovering
the principles of just law, that is to say law conforming to the will of God,
to nature and to reason, and there was little concern for positive law or
the law as it applied in fact. Local or customary law was of importance
to practitioners and the legislative measures of ruling sovereigns were of
interest to governments of other countries, but neither was of any real
significance to those who meditated upon and wrote about law. Positive
law in either form was neglected in the universities. There the principal
study, once thought more noble and more suitable to true legal training,
was the search for just rules that would be applicable in all countries. This
search, which was to reveal the true science of law, was best carried out in
the study not of the various national or local laws but rather in Roman law
and Canon law, the only laws common to the whole of the civilized (i.e.
Christian) world.”

Much earlier, Aquinas had introduced among his four types of law two categories
which can be seen as ‘positive law’, namely ‘divine law’ as revealed in
scripture, and ‘human law’ as articulated by human authorities.

Friedmann (1947: 135) wrote:

“Positivism mistrusts a priori assumptions and ideas, it places its faith
in observations. The scientific method is extended to ‘practical reason,’
including law. Accordingly the number and variety of positivist legal theories
is as great as that of the sciences, each claiming certainty and accuracy
in its own field. Therefore, positivism in jurisprudence comprises legal
movements, poles apart in every respect, except for their common aversion
against metaphysical theories and natural law in particular. As often as not, however, positivist theories substitute for the articulate idealism of the theories which they fight an inarticulate idealism of their own, which is presented as a scientific fact based on observations.”

Now, ‘positive law, in the sense of the law of the state, is something ascertainable and valid without regard to subjective considerations’ (Freeman, 2001: 200).

Olivecrona (1971: 77-8) argued that positive law simply did not exist:

“No rules of law at all are the expression of the will of an authority existing
prior to the law itself. What we have before us is a body of rules that has
been slowly changing and growing during the centuries. It would be no
use to call this body of rules positive law. The adjective ‘positive’ is entirely
superfluous; it might be misleading because it is connected with the idea
that the law is ‘posited’ in the sense of being the expression of the will of a
lawgiver.

The term a ‘positive’ law may therefore conveniently bedroppedas a term
for an objectively existing phenomenon . . . When speaking of the law itself,
it is much better simply to say ‘the law’ without the adjective ‘positive’.”

Harris (1980: 24-5) explained:

“Where an act was commanded or prohibited, it was the subject of a legal
duty. ‘Duty’ was the lowest common denominator of all laws. All other legal
concepts, such as right, power and property, were to be translatable into
their relationships to duties. Having decided, on the basis of utility, what acts
ought to be made the subject of duties, and what incentive to compliance
(whether punishment or reward) was desirable, scientific codes could be
worked out.”

Twining (2000: 97) presents Bentham as a soft positivist: ‘Bentham’s theory arguably
has affinities with pragmatism, the sociology of knowledge, and even some of
the milder kinds of post-modernism’.

Austin’s exposition of this theory in 1832 laid foundations for the ‘analytical
school of jurisprudence’, which is not Austin’s term (Twining, 2000: 23).

Harris (1988: 4) notes:

“Austin treats rules, including legal rules, as though they were amenable to
analysis ‘in a vacuum’ . . . in a manner divorced from social contexts or
settings. For Austin, the hallmark of a legal rule (which he terms ‘positive’, or man-made, law) lies in the manner of its creation. He defined law as the command of the sovereign body in a society (which may be a person, such as a king or queen, or a body of elected officials such as our own law-making body which we refer to formally as ‘the Queen in Parliament’), and these commands are backed up by threats of sanctions, to be applied in the event
of disobedience.”

Kelsen’s approach focused on jurisprudence as a science of ‘norms’ or normative propositions
with their own hierarchy. Freeman (2001: 256) explains:

“For Kelsen, the law consists of norms: a norm cannot be derived from
facts, but only from other norms. The relationship between norms is one
of ‘imputation’, not causality . . . [N]ormative science, such as law or
ethics, is concerned with conduct as it ought to take place, determined
by norms.”

Kelsen saw norms as expressing expectations, not facts. A norm in his scheme
is therefore not an ‘is’, but an ‘ought’.

Legrand (1997a: 59) argues that ‘[l]egal positivism and the closed system of codes which the fetishism of rules commands must be regarded as obsolete’.

Positivism School

As legal philosopher John Austin concisely put it, “Law is the command of a sovereign.” Law is only law, in other words, if it comes from a recognized authority and can be enforced by that authority, or sovereign-such as a king, a president, or a dictator-who has power within a defined area or territory. Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of laws?

We could examine existing statutes-executive orders, regulations, or judicial decisions-in a fairly precise way to find out what the law says. For example, we could look at the posted speed limits on most US highways and conclude that the “correct” or “right” speed is no more than fifty-five miles per hour. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule itself says, is sometimes known as the “positivist” school of legal thought. The second approach-which relies on social context and the actual behavior of the principal actors who enforce the law-is akin to the “legal realist” school of thought (see bellow).

Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it was the command of a sovereign, the decree was carried out (or, in legal jargon, the decree was “executed” ). Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life-threatening and women doctors are few and far between. Suppose also that this command is carried out, just because it is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law’s impact, a citizen would have to flee the country entirely. During the Taliban rule in Afghanistan, from which this example is drawn, many did flee.

The positive-law school of legal thought would recognize the lawmaker’s command as legitimate; questions about the law’s morality or immorality would not be important. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law. (1)

Beyond positivism

The inherent circularity of legal positivism and the potential for its abuse led
to much distrust and deep rethinking of its premises, especially after 1945.
However, the recognition that the state, in whatever form, is needed to maintain
stability and order in society has remained strong, and positivist ideology
has developed new dynamics and mechanisms of self-interested defence.

Resources

Notes

  1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.

See Also

Further Reading

Aristotle (1996) The Politics and the Constitution of Athens, S. Everson , ed. and trans., Cambridge: Cambridge University Press.
Aquinas, T. (2002) Aquinas: Political Writings, R. W. Dyson , ed. and trans., Cambridge: Cambridge University Press.
Austin, J. (1955/1832) The Province of Jurisprudence Determined, H. L. A. Hart , ed., London: Weidenfeld and Nicolson.
Bentham, J. , MSS at University College London, box 100, fo. 98.
Bentham, J. (2010/1780–1782) Of the Limits of the Penal Branch of Jurisprudence, P. Schofield , ed., Oxford: Clarendon Press.
Bentham, J. (2008) Comment on the Commentaries and A Fragment on Government , J. H. Burns and H. L. A. Hart , eds., Oxford: Clarendon Press.
Bentham, J. (1998) Legislator of the World: Writings on Codification, Law and Education, P. Schofield and J. Harris , eds., Oxford: Clarendon Press.
Bentham, J. (1996) An Introduction to the Principles of Morals and Legislation, J. H. Burns and H. L. A. Hart , eds., Oxford: Clarendon Press.
Bentham, J. (1983/1830) Constitutional Code, Volume 1, F. Rosen and J. H. Burns , eds., Oxford: Clarendon Press.
Bentham, J. (1838–1843) The Works of Jeremy Bentham, J. Bowring , ed., Edinburgh: William Tait.
Buckland, W. W. (1945) Some Reflections on Jurisprudence, Cambridge: Cambridge University Press.
Epicurus (1987) Key Doctrines 33, 32, in A. A. Long and D. N. Sedley , trans., The Hellenistic Philosophers, Cambridge: Cambridge University Press.
Gray, J. C. (1921) The Nature and Sources of Law,, New York: Macmillan.
F. D. Miller, ed. (2007) A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, Dordrecht: Springer (has a number of important essays on ancient and medieval legal theory);
Hale, Sir Matthew (n.d.) Treatise of the Nature of Laws in General and Touching on the Law of Nature, Hargrave MS 485, British Library.
Hart, H. L. A. (1994) The Concept of Law, 2nd edition, P. A. Bullock and J. Raz. eds., Oxford: Clarendon Press.
Hart, H. L. A. (1983) ‘Positivism and the Separation of Law and Morals,’ in H. L. A. Hart , Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press.
Hart, H. L. A. (1982) Essays on Bentham, Oxford: Clarendon Press.
Hobbes, T. (2005/1681) A Dialogue Between a Philosopher and a Student of the Common Laws of England, A. Cromartie , ed., Oxford: Clarendon Press.
Hobbes, T. (1991/1651) Leviathan, R. Tuck , ed., Cambridge: Cambridge University Press.
Hobbes, T. (1998/1642) On the Citizen, R. Tuck , ed., M. Silverthorne , trans., Cambridge: Cambridge University Press.
Holland, T. E. (1924/1880) Elements of Jurisprudence, Oxford: Clarendon Press.
Holmes, Jr., O. W. (1995) The Collected Works of Justice Holmes, S. M. Novick , ed., Chicago: University of Chicago Press.
Hume, D. (2000/1739–1740) A Treatise of Human Nature, D. Norton , ed., Oxford: Oxford University Press.
Long, R. T. (2007) ‘Hellenistic Philosophers of Law,’ in F. D. Miller , ed., A Treatise of Legal Philosophy and General Jurisprudence, Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics, Dordrecht: Springer, pp. 111–131.
Marsilius of Padua (2005/1324) The Defender of the Peace, A. Brett , ed. and trans., Cambridge: Cambridge University Press.
M. Lobban (2007) A History of the Philosophy of Law in the Common Law World, 1600–1900, Dordrecht: Springer (contains useful discussions of Hale, Bentham, Austin and Holmes);
Perry, S. (2001) ‘Hart’s Methodological Positivism,’ in J. Coleman , ed., Hart’s Postscript, Oxford: Oxford University Press, pp. 311–354.
Plato (1995) The Statesman, J. Annas , ed. and R. Waterfield , trans., Cambridge: Cambridge University Press.
Pollock, F. (1872) ‘Law and Command,’ Law Magazine and Review, N.S. 1: 189–205.
Postema, G. J. (1986) Bentham and the Common Law Tradition, Oxford: Clarendon Press.
Postema, G. J. (2011) Legal Philosophy in the Twentieth Century: The Common Law World, Dordrecht: Springer.
Postema G. J. (2001) ‘Law as Command: The Model of Command in Modern Jurisprudence,’ Philosophical Issues 11: 470–501 (includes discussion of the ‘thetic’ conception of law)
Postema G. J., ed. (2002) Bentham: Moral, Political and Legal Philosophy, Volume II, Aldershot: Dartmouth Publishing Co. (collects several interpretive and critical discussions of Bentham’s legal philosophy)
Postema G. J. (2011) Legal Philosophy in the Twentieth Century: The Common Law World, Dordrecht: Springer (includes extended discussions of Holland, Salmond, Gray and especially Holmes and Hart).
Pufendorf, S. (1994) The Political Writings of Samuel Pufendorf, C. L. Carr , ed. and M. Silverthorne , trans., Cambridge: Cambridge University Press.
Rumble, W. E. (2005) Doing Austin Justice, New York: Continuum.
Salmond, J. W. (1893) The First Principles of Jurisprudence, London: Stevens & Haynes.
Salmond, J. W. (1924) Jurisprudence, 7th edition, London: Sweet & Maxwell.
Suarez, F. (1944) On Laws and God the Lawgiver, G. L. Williams , A. Brown and J. Waldron , trans., Oxford: Oxford University Press.

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