Legal positivism is a school of thought in philosophy of law and jurisprudence. The principal claims of modern legal positivism are that:
- There is no inherent or necessary connection between the validity conditions of law and ethics or morality.
- Laws are rules made, whether deliberately or unintentionally, by human beings.
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Legal positivism and ethics
The relation of ethics to natural law is difficult. Legal positivism states that there is no inherent or necessary connection between the validity conditions of law and ethics or morality. Therefore, in legal positivism, the law is seen as being conceptually separate (though of course not separated) from moral and ethical values, and it simply sees the law is posited by lawmakers, who are humans.
It should be noted that although a positivist's view of law is that it is ultimately a matter of human custom or convention, this does not entail or presuppose that positivists endorse laws of any particular content, or the view that valid law is always to be obeyed by citizens or applied by judges. The postivist argument is solely about the nature of law as a human institution.
Legal positivism and legal realism
Legal positivism should be distinguished from legal realism and such legal realists as Oliver Wendell Holmes, Jr. The differences are both analytically and normatively important.
- Both systems believe that law is a human construct, but unlike the American 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)."[1] But no positivist has ever asserted that law is made valid through anyone's decision. On Hart's view, the validity of law is a matter of the customary and collective practices of the courts. And as far as the moral validity of law is concerned, all positivists—and realists—maintain that this is a matter of moral principles. 'The power of decision,' plays 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 sound moral principles are made so by anyone's decision.
History
Jeremy Bentham
In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called:
- Expositors - those who explained what the law in practice was; and
- Censors - those who criticised the law in practice and compared it to their notions of what it ought to be.
The philosophy of law, strictly considered, 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
The distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized by most members of a society, whose authority is enforced through the use of sanctions, but who is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents.
The three basic points of Austin's positivism are:
- the law is command issued by the uncommanded commander—the sovereign;
- such commands are backed by sanctions; and
- a sovereign is one who is obeyed by the majority
Austin viewed the law as commands from a sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society obeys habitually. This of course raises problems of the sovereign-many - Parliament, comprising numerous individuals, each with varying authoritative powers. Austin's theory also falls somewhat short 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, for instance contract law, Austin says failure to adhere to the rules does indeed lead to sanctions, however such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control others. This definition of law was criticised by the 20th century legal philosopher H. L. A. Hart, who said that it was analogous to a gunman backing up his demands with a threat of violence.
Austin was greatly influenced in his approach by Jeremy Bentham.
Hans Kelsen
Kelsen's is considered a very strict and scientifically understood type of legal positivism. It is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. 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."
His theory has followers among scholars of public law worldwide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In the English-speaking world, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both departed from Kelsen's theories in several respects.
H.L.A. Hart
H. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but felt that Austin's Command Theory failed in several important ways. In the book The Concept of Law, Hart outlined several key points: Among the many ideas developed in this book are:
- A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
- A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.
- A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules. Hart specifically enumerates three secondary rules; they are:
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- The Rule of Recognition, the rule by which any member of society may check to find out what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm."
- The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.
- The Rule of Adjudication, the rule by which the society might determine when a rule has been broken and perscribe a remedy.
- A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).
Joseph Raz
A pupil of H.L.A. Hart, Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This included editing 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.
See also
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References
- ^ Luhmann, 1987
Further reading
- Internet Encyclopedia of Philosophy entry by Kenneth Einar Himma
- Stanford Encyclopedia of Philosophy entry by Leslie Green
- Daniel Z. Epstein (2007). "Law's 'I'"
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