Legal Positivism

1) What is Legal Positivism?

A school of analytical jurisprudence known as legal positivism was predominantly created in the 18th and 19th centuries by legal philosophers like Jeremy Bentham and John Austin. Empiricism supplied the theoretical groundwork for such changes to occur while Bentham and Austin established the legal positivist theory.

2) Main Thinkers of Legal Positivism:

Thomas Hobbes and Leviathan:

In his landmark work, Leviathan, Thomas Hobbes proposed the first specific theory of law based on the idea of sovereign power. Hampton argues that “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”. The question of whether Hobbes was a legal positivist is up for debate.

Jeremy Bentham:

The most influential British legal positivist in history is undoubtedly the English jurist and philosopher Jeremy Bentham. He formulated a theory of law as the manifestation of a sovereign’s will in ‘An Introduction to the Principles of Morals and Legislation’. Bentham distinguished between two categories of persons in “A Fragment on Government”: exposers, who clarified what the law was, and censors, who criticised the law in actuality and contrasted it with their ideas of what it should be. When applied strictly, the goal of legal philosophy was to explain the actual laws of the expositors rather than the censors’ objections. Additionally, Bentham is renowned for calling natural law “nonsense on stilts.”

John Austin:

When John Austin wrote ‘The Province of Jurisprudence Determined’, he partially imitated Jeremy Bentham. Austin, however, diverged from Bentham in several ways, including his support for the common law. Despite their differences, Austin accepted Hobbes’ and Bentham’s view of law as a sovereign command, whose legitimacy is acknowledged by the majority of a community, whose authority is upheld via the application of punishments, but which is unconstrained by any human superior. In such a society, the requirement for a legal norm to be valid is that it be supported by the sovereign and that the sovereign power and its agents will carry out its enforcement.

Austin’s command theory has three key tenets: laws are commands given by the sovereign, i.e., the un-commanded commander; such commands are implemented by sanctions; and a sovereign is someone who is respected by the majority. Austin defined law as orders issued by a sovereign that are carried out under threat of punishment. Austin understood that the definition of “a sovereign” refers to a person who is routinely obeyed by society. This sovereign may be a single person or a group of people, such as a Parliament, who together hold a variety of authoritative abilities. In his discussions of constitutions, international law, unofficial regulations, and legislation that grants rights, Austin’s theory is likewise a little terse. Austin stated that breaking the rules does result in sanctions, but these sanctions take the form of “the sanction of nullity” in the case of non-sanctioned rules and laws that permit people to do things, such as contract law.

Hans Kelsen and Germanic Positivism:

Empiricism served as the foundation for the British legal positivism previously described, whilst Immanuel Kant’s transcendental idealism served as the foundation for Germanic legal positivism. Germanic legal positivists view law as separate from fact and morality, in contrast to British legal positivists who see law as distinct from morality.

These are the main components of Kelsen’s hypothesis. The physical world’s objects and events make up facts. Facts are information about what is. We look for another fact when we want to know what caused a fact. The gravitational pull of the Earth causes a stone to fall when it is tossed into the air. The Earth’s axis is tilted at a 23.5-degree angle, which causes seasons. In contrast to a fact, a norm refers to what should be done or not done rather than what actually is.

Norms exist in the world of ideas, but facts only exist in the actual world. A fact is a result of another fact. Other norms imply certain norms. It is customary to ensure that theft offenders get punishment. The fact that the criminal escapes punishment does not make it stop being the norm. Due to a different norm, it is accepted practise to penalise thieves. Not every standard is a law. Moral norms are also present. Moral norms are not forceful, but legal rules are.

A Grundnorm (basic norm), as Kelsen named it, is the first cause that results from the regression of validated norms, according to this paradigm. As a result, just like a tree’s branches and leaves, the legal system is a system of standards tied to one another by their shared ancestry. Kelsen believed that the idea of “sovereignty” was arbitrary: “We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition”.

Kelsen acquired followers among public law academics all around the world. To further his beliefs, these followers created “schools of thought,” including the Vienna School in Austria and the Brno School in Czechoslovakia. Although both schools diverged from Kelsen’s beliefs in several ways, H. L. A. Hart and Joseph Raz are two of the most well-known authors who were influenced by him in English-speaking nations.

Joseph Raz:

Since Hart’s passing, Joseph Raz, a former student, has played a significant role in advancing his legal positivist theories. In 1994, he edited a revised version of Hart’s The Concept of Law that featured a new part containing Hart’s comments to critiques of his work from other philosophers. In addition, Raz asserted that, in contrast to Hart, a law’s legality can never depend on how moral it is. Raz eventually accepted, nonetheless, that in some cases, morality may override the rule of law. Gustav Radbruch famously rejected legal positivism in Germany in 1946 when determining whether Nazi sympathisers’ conduct was legitimate under Nazi Germany law presented a hurdle. According to Radbruch, a law effectively becomes “erroneous law” and should not be blindly accepted when the “discrepancy between the positive law and justice reaches a level so unbearable”.

H. L. A. Hart:

Austin’s theory of a sovereign was well received by Hart, but Hart argued that Austin’s command theory was flawed in several significant ways. A critique of Austin’s theory that a law is a command of the sovereign enforced by the threat of punishment is among the ideas developed in Hart’s book ‘The Concept of Law’ (1961). Other ideas include a distinction between internal and external consideration of law and rules, influenced by Max Weber’s distinction between legal and sociological perspectives on law. Hart identifies three different kinds of secondary rules: a rule of recognition, which allows any member of the society to check to see what the primary rules of the society are; a rule of change, which allows the society to create new primary rules or change existing ones; a rule of adjudication, which allows the society to decide when a rule has been broken and prescribe a remedy; and a late reply (1994 edition) to Ronald Dworkin, who criticised legal positivism generally and especially critiqued Hart’s account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law’s Empire (1986).

3) Main Principles of Legal Positivism:

One of the most influential philosophical theories of the nature of law, legal positivism is characterised by two theses: (1) there is no necessary connection between law and morality; specifically, the existence and content of a law do not depend on its virtues or vices (e.g., whether or not it lives up to the ideals of justice, democracy, or morality); and (2) there is no connection between law and social facts (e.g., facts about human behaviour and intentions).

4) Its Criticisms:

The assumption that legal positivism undervalues morality is the root of most effective criticisms of it. The law serves crucial roles in fostering harmony and peace in our lives, furthering the common good, safeguarding human rights, and maintaining the integrity of government, but it has no bearing on our moral principles.

Law and morality cannot be separated, according to Lon Fuller. He holds that all other social practises having such characteristics, such as custom and positive morality, can be found to have the qualities that are inherent in or flow from clear, consistent, prospective, and open practises. This includes law. His third criticism is that if law is a matter of fact, then the obligation to comply does not have a justification. Even though a law is immoral, one must nevertheless follow it.

Ronald Dworkin criticises positivism’s entire institutional focus and disputes the possibility of any general theory of the existence and content of law. He also disputes the ability of local theories of specific legal systems to identify law without reference to its merits. According to him, a theory of law is a theory of how cases should be determined, and it starts not with a description of how politics is organised but with an ideal that governs the circumstances in which governments may use coercive power against their citizens. A society only has a legal system when, and to the degree that, it upholds this ideal, and its law is the collection of all factors that its courts would be ethically justified in applying, regardless of the source of those factors.