Legal positivism is a school of thought of analytical jurisprudence largely developed by legal thinkers in the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism set the theoretical foundations for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
Historically, legal positivism sits 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.
The term positivism is derived from Latin ponere, positum, meaning "to put". "Positive law" is that which is man-made, i.e., formally laid down.
In the positivist view, the "source" of a law is the establishment of that law by some socially recognised legal authority. 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 like so: "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 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. 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 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 to a separate investigation.
Legal positivism is distinct from legal realism. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American legal 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 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)." However, 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. As for the moral validity of law, both 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.
The main antecedent of legal positivism is Empiricism, whose thinkers range back as far as Sextus Empiricus, Thomas Hobbes, John Locke, George Berkeley, David Hume, and Auguste Comte. Central to the 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 stands 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 acted as a harbinger for a systematic version of a positivist approach to problems of comprehension and analysis, which was later mirrored in legal positivism.
Logical positivists, such as Rudolf Carnap and Alfred Jules Ayer paved the way for another important tenet of legal positivism, namely, that propositions and the use of words must be examined in order to understand reality. A sentence has literal significance if, and only if, it expresses something which is either tautologous or empirically verifiable.
With the empiricist and logical positivist theoretical influences borne in mind, the essence of legal positivism as a descriptive investigation of particular legal orders is revealed, which, as Peter Curzon wrote, 'utilises in its investigations the inductive method (i.e., proceeding from observation of particular facts to generalisations concerning all such facts).' During these investigations, matters of ethics, social policies and morality are eschewed; as Julius Stone wrote, it is concerned primarily with 'an analysis of legal terms, and an enquiry into the logical interrelations of legal propositions'. Further, law and its authority is seen as source-based; i.e., the validity of a legal norm depends not on the moral value attached thereto, but from the sources determined by a social community's rules and conventions. The source-based conception of law is reminiscent of the logical positivist, Carnap, who starkly rejected metaphysics on the basis that it attempts to interpret the nature of reality beyond the physical and experiential.
Thomas Hobbes and Leviathan
Thomas Hobbes, in his seminal work Leviathan, postulated the first clear 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.' There is, however, debate surrounding Hobbes's status as a legal positivist.
The English jurist and philosopher Jeremy Bentham is arguably the greatest historical figure in the British legal positivist movement. In An Introduction to the Principles of Morals and Legislation, Bentham laid the groundwork for a theory of law as the expressed will of a sovereign. Bentham made a sharp 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 calling natural law "nonsense upon stilts".
John Austin's command theory John Austin followed in the theoretical footsteps of Bentham by writing The Province of jurisprudence Determined. However, Austin departed from Bentham on a number of points, for example, by supporting 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 and Germanic positivism
The British legal positivism hitherto mentioned was founded on empiricism; by contrast, Germanic 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 both separate from both fact and morals. The most famous proponent of Germanic legal positivism is Hans Kelsen, whose central thesis on legal positivism is unpacked 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.
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 Grundnorm (basic norm). 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 a loaded concept: "We can derive from the concept of sovereignty nothing else other than 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 most well-known authors who were influenced by Kelsen, though both schools differed from Kelsen's theories in several respects.
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:
A pupil of Hart's, Joseph Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This has 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 has also argued, contrary to Hart, that the validity of a law can never depend on its morality. However, Raz has come to accept that law may depend upon morality in certain circumstances.
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.
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law.
Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is, must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Springer books commissioned essays on analytical jurisprudence for A Treatise on Legal Philosophy and General Jurisprudence. ISBN 9781402033872
Volume 1: Legal ontology and epistemology by Pattero
Volume 2: Legal foundations by Rottleuthner
Volume 3: Sources and institutions of law by Shiner
Volume 4: Legal doctrine by Peczenik
Volume 5: Legal reasoning by Sartor
Volume 6: History to early modern scholasticism edited by Miller and Biondi
Volume 7: Rome, Middle Ages, & Politics edited by Padovani & Stein
Volume 8: Various including Blackstone & Bentham by Michael LobbanHans Kelsen
Hans Kelsen (; German: [ˈhans ˈkɛlsən]; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He is author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria (and a 1929 constitutional change), Kelsen left for Germany in 1930 but was forced to leave this university post after Hitler's seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and later moved to the United States in 1940. 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 the subject of social psychology and sociology.
By the 1940s, Kelsen's reputation was already well established in the United States for his defense of democracy and for his Pure Theory of Law. Kelsen's academic stature exceeded legal theory alone and extended to political philosophy and social theory as well. His influence encompassed the fields of philosophy, legal science, sociology, the theory of democracy, and international relations.
Late in his career while at the University of California, Berkeley, although officially retired in 1952, Kelsen rewrote his short book of 1934, Reine Rechtslehre (Pure Theory of Law), into a much enlarged "second edition" published in 1960 (it appeared in an English translation in 1967). Kelsen throughout his active career was also a significant contributor to the theory of judicial review, the hierarchical and dynamic theory of positive law, and the science of law. In political philosophy he was a defender of the state-law identity theory and an advocate of explicit contrast of the themes of centralization and decentralization in the theory of government. Kelsen was also an advocate of the position of separation of the concepts of state and society in their relation to the study of the science of law.
The reception and criticism of Kelsen's work and contributions has been extensive with both ardent supporters and detractors. Kelsen's contributions to legal theory of the Nuremberg trials was supported and contested by various authors including Dinstein at the Hebrew University in Jerusalem. Kelsen's neo-Kantian defense of continental legal positivism was supported by H. L. A. Hart in its contrasting form of Anglo-American legal positivism, which was debated in its Anglo-American form by scholars such as Ronald Dworkin and Jeremy Waldron.Hart–Dworkin debate
The Hart–Dworkin debate is a debate in legal philosophy between H. L. A. Hart and Ronald Dworkin. At the heart of the debate lies a Dworkinian critique of Hartian legal positivism, specifically, the theory presented in Hart's book The Concept of Law.
While Hart insists that judges are within bounds to legislate on the basis of rules of law, Dworkin strives to show that in these cases, judges work from a set of 'principles' which they use to formulate judgements, and that these principles either form the basis, or can be extrapolated from the present rules.Interpretivism (legal)
Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law.John Austin (legal philosopher)
John Austin (3 March 1790 – 1 December 1859) was a noted English legal theorist, who influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional approaches of "natural law", Austin argued against any necessary connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.Joseph Raz
Joseph Raz (; Hebrew: יוסף רז; born 21 March 1939) is an Israeli legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism and is well known for his conception of perfectionist liberalism. Raz spent most of his career as a professor of philosophy of law at the University of Oxford associated with Balliol College, and is now a part-time professor of law at Columbia University Law School and a part-time professor at King's College London. He received the prestigious Tang Prize for rule of law in 2018.Jurisprudence
Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from the twentieth century, also by social scientists. Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.Modern jurisprudence began in the 18th century and was focused on the first principles of natural law, civil law, and the law of nations. General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists.This article addresses three distinct branches of thought in general jurisprudence. Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever force they have. Analytic jurisprudence (Clarificatory jurisprudence) rejects natural law's fusing of what law is and what it ought to be. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems. It encompasses such theories of jurisprudence as "legal positivism", which holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts; and "legal realism", which argues that the real-world practice of law determines what law is, the law having the force that it does because of what legislators, lawyers, and judges do with it. Normative jurisprudence is concerned with "evaluative" theories of law. It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. It not only addresses the question "What is law?", but also tries to determine what the proper function of law should be, or what sorts of acts should be subject to legal sanctions, and what sorts of punishment should be permitted.Jurisprudence of concepts
The jurisprudence of concepts was the first sub-school of legal positivism, according to which, the written law must reflect concepts, when interpreted. Its main representatives were Ihering, Savigny and Puchta.
This school was, thus, the preceding trigger of the idea that law comes from a dogmatic source, imposition from man over man and not a natural consequence of other sciences or of metaphysical faith.
Among the main characters of the jurisprudence of concepts are:
formalism, search of rights in written law
search for justifying specific norm with basis from more generic ones.So, according to this school, law should have prevailing sources based upon the legislative process, although needing to be proven by more inclusive ideas of a social sense.Jurisprudence of interests
In European legal history and the philosophy of law, the jurisprudence of interests is a doctrine of legal positivism of the early 20th century, according to which a written law must be interpreted to reflect the interests it is to promote. The main proponents of the jurisprudence of interests were Philipp Heck, Rudolf Müller-Erzbach, Arthur F. Bentley and Roscoe Pound.The school of legal positivism passed through the phase of the jurisprudence of interests after the jurisprudence of concepts. In the jurisprudence of interests, one interprets a law essentially in terms of the purposes it is intended to accomplish. This doctrine is characterized by the idea of obedience to law, and subsumption as the resolution of conflicts of interests in the concrete and in the abstract, whereby the interests necessary to life in society, as materialized in that law, should prevail. It is therefore a distinctly teleological school.Jurisprudence of values
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.This modus of thinking of focuses on constitutional principles.The jurisprudence of values centers on the concepts of incidence and interpretation of the legal norm, as well as rules and principles, and concepts like equality, freedom, and justice.Legal Positivism (book)
Legal Positivism (Il Positivismo Giuridico) 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.Lon L. Fuller
Lon Luvois Fuller (June 15, 1902 – April 8, 1978) was a noted legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University 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 (Vol. 71) 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".Matthew Kramer
Matthew Henry Kramer FBA (born 9 June 1959) is an American philosopher, currently Professor of Legal and Political Philosophy at the University of Cambridge and a Fellow of Churchill College, Cambridge. He writes mainly in the areas of metaethics, normative ethics, legal philosophy, and political philosophy. He is a leading proponent of legal positivism. He has been Director of the Cambridge Forum for Legal and Political Philosophy since 2000. He has been teaching at Cambridge University and at Churchill College since 1994.Pedro Lombardía
Pedro Lombardía (Córdoba, 1930-Pamplona, 1986) was a Spanish canonist and pioneer of the Study of State Ecclesiastical Law in Spain. He held the chairs of Canon Law and State Ecclesiastical Law at the University of Navarra and the Complutense University of Madrid.
Lombardía was the founder of the School of Lombardía, a group of canonists who advocated for a methodological modernization of canon law. Lombardía and his followers shared an interest of overcoming the exegetical method to and replace by the systematic approach with the Italian School of Canon Law but disagree with their theory of canonizatio according to which the ultimate criteria of unity of the canonic order is in the acts of the ecclesiastical authority. For the school of Lombardía the theory of canonizatio necessarily implies the acceptance of legal positivism and the conditioning of the binding character of the divine law (natural and positive) to an act of authority.
Another central concern in the work of Lombardía is the need to complement the traditional view of canon law as a discipline with a perspective based on the freedoms and rights of members of the Catholic Church. This concern led him to develop a theory of the fundamental rights of the members of the church, which is one of the influences of the second title of the current Code of Canon Law.
In his later years Lombardía was especially devoted himself to the study of State Ecclesiastical Law.Philosophy 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.Philosophy of law can be sub-divided into analytical jurisprudence and normative jurisprudence. Analytical jurisprudence aims to define what law is and what it is not by identifying law's essential features. Normative jurisprudence investigates both the non-legal norms that shape law and the legal norms that are generated by law and guide human action.Positive law
Positive laws (Latin: ius positum) are human-made laws that oblige or specify an action. It also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit.
The concept of positive law is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason." Positive law is also described as the law that applies at a certain time (present or past) and at a certain place, consisting of statutory law, and case law as far as it is binding. More specifically, positive law may be characterized as "law actually and specifically enacted or adopted by proper authority for the government of an organized jural society."Positivism (disambiguation)
Positivism is a philosophy which states that the only authentic knowledge is scientific knowledge. Positivism was central to the foundation of academic sociology.
Positivism may also refer to:
Logical positivism, a school of philosophy that combines empiricism with a version of rationalism
Sociological positivism, a sociological paradigm
Legal positivism, a school of thought in jurisprudence and the philosophy of law
The positivist school of criminology
Positivism in Poland, a socio-cultural movement in Poland after the 1863 January Uprising
Political positivism, a theory founded in early 21st century by Ljubiša Bojić
Postpositivism (international relations), a school of thought in international relations theoryRobert Alexy
Robert Alexy (born September 9, 1945 in Oldenburg, Germany) is a jurist and a legal philosopher.
Alexy studied law and philosophy at the University of Göttingen. He received his PhD in 1976 with the dissertation A Theory of Legal Argumentation, and he achieved his Habilitation in 1984 with a Theory of Constitutional Rights.
He is a professor at the University of Kiel and in 2002 he was appointed to the Academy of Sciences and Humanities at the University of Göttingen. In 2010 he was awarded the Order of Merit of the Federal Republic of Germany.Alexy's definition of law looks like a mix of Kelsen's normativism (which was an influential version of legal positivism) and Radbruch's legal naturalism (Alexy, 2002), but Alexy's theory of argumentation (Alexy, 1983) puts him very close to legal interpretivism.
Since 2008 the Universities of Alicante, Buenos Aires, Tucamán, Antwerp, National University of San Marcos in Lima, Prague, Coimbra, Porto Alegre, Belo Horizonte, Chapecó, Rio de Janeiro and Bogotá awarded him the honorary doctorate degree.Taking Rights Seriously
Taking Rights Seriously is a 1977 book about the philosophy of law by Ronald Dworkin. In this landmark book, Dworkin argues against the dominant philosophy of Anglo-American legal positivism as presented by H. L. A. Hart in The Concept of Law (1961) and utilitarianism by proposing that rights of the individual against the state exist outside of the written law and function as "trumps" against the interests or wishes of the majority.
Most of the book's chapters are revised versions of previously published papers. In addition to his critique of legal positivism and utilitarian ethics, Dworkin includes important discussions of constitutional interpretation, judicial discretion, civil disobedience, reverse discrimination, John Rawls' theory of justice, and the Hart–Devlin debate on legislating morality.
A revised edition of book was published in 1978 and includes a lengthy reply by Dworkin to his critics.
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