Legal Positivism is a central theory in legal philosophy that defines law as the body of rules explicitly enacted and recognized by a society's legitimate authorities. It insists that law is distinct from morality, meaning that a rule's validity depends not on its ethical content but on its proper enactment and recognition within the legal system.
- Law is a system of rules created by legitimate authorities.
- Legal validity is separate from moral considerations.
- Focuses on "what law is" (descriptive), not "what law ought to be" (normative).
Legal positivism asserts that law is separate from morality.
Law, per legal positivism, consists of rules issued by legitimate authority, not tied to morality.
Historical Origins
Legal positivism emerged in the 19th century as a response to natural law theories. Key figures include:
- Jeremy Bentham: Criticized natural law and emphasized law as commands from sovereigns.
- John Austin: Defined law as “commands backed by threats” from a sovereign.
- Hans Kelsen: Developed the “Pure Theory of Law,” viewing law as a self-contained normative system.
- H.L.A. Hart: Refined positivism, highlighting the role of social rules and legal validity criteria.
- Displaced natural law's moral foundations.
- Emphasized clarity, separation, and systematic analysis of law.
Aristotle is not a legal positivist; key figures include Bentham, Austin, and Hart.
Bentham and Austin saw law as commands from a sovereign, separate from morality.
Core Principles
1. Separation Thesis
Law and morality are distinct. Legal validity does not depend on moral merit.
2. Sovereignty
Law originates from the decisions and commands of a recognized authority or sovereign.
3. Social Fact Thesis
Law is grounded in social facts, not in moral arguments.
4. Pedigree
For a rule to be "law," it must have the correct origin (pedigree), i.e., be created according to established procedures.
- Legal rules are valid because of their source and form, not their content.
- Law is viewed as it "is," not as it "ought" to be.
Legal positivism asserts separation of law/morality, law as command, and law as social fact.
Legal Positivism vs. Natural Law
| Aspect | Legal Positivism | Natural Law |
|---|---|---|
| Law's Basis | Rules from legitimate authority | Moral principles inherent in nature |
| Law and Morality | Separate | Interconnected |
| Definition of Law | What law is (descriptive) | What law ought to be (normative) |
| Criteria for Validity | Proper enactment and recognition | Consistency with moral standards |
- Positivism focuses on law as enacted; Natural law sees law as moral truth.
- Positivism accepts unjust laws as "law"; Natural law denies this.
Legal positivism views law as separate from morality, unlike natural law.
Positivism ties law to authority and social facts; natural law links law to morality.
H.L.A. Hart and Modern Positivism
Hart addressed criticisms of earlier positivism, especially John Austin's "command theory," and introduced a more sophisticated view in his book The Concept of Law (1961).
- Primary rules: Rules that impose duties.
- Secondary rules: Rules about rules (e.g., how laws are made, changed, or adjudicated).
- Rule of recognition: A social rule used to identify valid legal norms.
- Law includes both social practices and normative elements.
- Hart acknowledged "law can be unjust," but unjust laws are still legally valid if they meet criteria.
Hart introduced primary and secondary rules, refining legal positivism.
Hart introduced primary/secondary rules and the rule of recognition.
Criticisms of Legal Positivism
- Moral critique: Positivism can justify immoral laws as valid (e.g., Nazi laws).
- Incomplete: Some argue that law inevitably involves moral judgment.
- Descriptive, not prescriptive: Critics say positivism can't explain why people should obey unjust laws.
- Exclusion of "internal" perspective: Some argue positivism overlooks how law functions as a system of reasons for its subjects.
Legal positivism is criticized for legitimizing immoral laws and ignoring moral aspects.
Critics argue legal positivism is inadequate because it separates law from morality.
Conclusion
Legal Positivism is a foundational theory in jurisprudence that defines law as a set of rules created and enforced by legitimate authorities, distinct from morality. It has profoundly influenced how legal systems are understood and has sparked ongoing debates about the nature of law and justice.
- Legal Positivism separates law from morality and focuses on law as it is, not as it should be.
- Key figures include Bentham, Austin, Hart, and Kelsen.
- The theory has shaped modern legal systems but faces critiques for its treatment of unjust laws.