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Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin formulated it thus: The existence of law is one thing; its merit and demerit another. hether it !e or !e not is

one in"uir#; whether it !e or !e not conforma!le to an assumed standard$ is a different in"uir#.%& Legal positivism has a long histor# and a !road influence. 't has antecedents in ancient political philosoph# and is discussed$ and the term itself introduced$ in medieval legal and political thought.( The modern doctrine$ however$ owes little to these for!ears. 'ts most important roots lie in the conventionalist political philosophies of )o!!es and )ume$ and its first full ela!oration is due to Jerem# *entham whose account Austin adopted$ modified$ and populari+ed. Jerem# *entham is a legal philosopher primaril# ,nown for this -tilitarian theor#. )e proposes that man is governed !# pain and pleasure and that ever# act made !# man will result in either of the two. -tilit#$ for *entham$ is simpl# that part in an# act or omission that results to happiness. )e proposes that an# act or omission that results to pleasure is good and an# act or omission that results to pain is !ad. )e goes on to sa# that it is the legislator.s responsi!ilit# to !e a!le to measure and determine$ !ased on several factors including intensit#$ duration$ certaint#$ remoteness$ num!er of people affected and etc.$ what the predominant result would come from an act or omission. 'f the act or omission results in a predominantl# pleasura!le tendenc#$ the act/omission is considered as good. 'f the act or omission results in more pain than pleasure$ the act or omission is !ad. Even if the act/omission is contrar# to morals$ customs$ and traditions$ as long as the result is more pleasura!le than painful$ then the act/omission is good.0

Austin$ John 1&20(3. The Province of Jurisprudence Determined. Ed.

.E. 4um!le$

&556. 7am!ridge: 7am!ridge -niversit# 8ress


9innis$ John 1&55:3. The Truth in Legal 8ositivism$% in The Autonomy of Law$ ed.

4o!ert 8. ;eorge. <xford: 7larendon 8ress$ pp. &56=(&>.


Bentham, Jeremy 1748-1832). An Introduction to the Principles of Morals and Legislation. Ed. 1789. Oxford: Clarendon re!!

John "#!t$n%! &on&e't of la( ha! the follo($n) element!: 1. *a( $! a &ommand $!!#ed +y the r#l$n) !o,ere$)n 2. Command $! )$,en to the !#+-e&t! for them to o+ey 3. .o,ere$)n ex'e&t! the &ommand to +e ha+$t#ally o+eyed +y h$! !#+-e&t! +#t doe! not ha+$t#ally o+ey anyone el!e. "#!t$n 're!#''o!e! that the relat$on!h$' +et(een the !o,ere$)n and the !#+-e&t +ody $! one that $! of !o,ere$)nty and !#+-e&t$on / !o,ere$)n ex'e&t! ha+$t#al o+ed$en&e from the !#+-e&t +ody +#t doe! not ne&e!!ar$ly and ha+$t#ally o+ey anyone el!e. 0he !o,ere$)n $! the one that $! $nde'endent and #'on (h$&h the !#+-e&t +ody $! de'endent on.
't is important to note that Austin !elieved that onl# the sovereign could issue laws. Austin adheres to *entham.s proposition that an# command issued !# the sovereign is deemed valid and thus must !e o!e#ed !# the su!ject !od# so the# will not suffer conse"uences for an# violation thereof. A law is onl# valid if it was issued from the proper authorit#. Austin.s test of validit# of a law was its source. 'n ever#$ or almost ever#$ independent political societ#$ there are principles or maxims which the sovereign ha!ituall# o!serves$ and which the !ul, of societ#$ or !ul, of its influential mem!ers$ regard with feelings of appro!ation. ?ot infre"uentl#$ such maxims are expressl# adopted$ as well as ha!ituall# o!served$ !# the sovereign or state. @ore commonl#$ the# are not expressl# adopted !# the sovereign or state$ !ut are simpl# imposed upon it !# opinions prevalent in the communit#. hether the# are expressl# adopted !# the sovereign or state$ or are

simpl# imposed upon it !# opinions prevalent in the communit#$ it is !ound or constrained to o!serve them !# merel# moral sanctions. <r 1changing the phrase3 in case it ventured to deviate from a maxim of the ,ind in "uestion$ it would not and could not incur a legal pain or penalt#$ !ut it pro!a!l# would incur censure$ and might chance to meet with resistance$ from the generalit# or !ul, of the governed.%4

Austin$ John 1&20(3. The Province of Jurisprudence Determined. Ed.

.E. 4um!le$

&556. 7am!ridge: 7am!ridge -niversit# 8ress

9or much of the next centur# an amalgam of their views$ according to which law is the command of a sovereign !ac,ed !# force$ dominated legal positivism and English philosophical reflection a!out law. *# the mid=twentieth centur#$ however$ this account had lost its influence among wor,ing legal philosophers. 'ts emphasis on legislative institutions was replaced !# a focus on law=appl#ing institutions such as courts$ and its insistence of the role of coercive force gave wa# to theories emphasi+ing the s#stematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist )ans Aelsen and the two dominating figures in the anal#tic philosoph# of law$ ).L.A. )art and Joseph 4a+ among whom there are clear lines of influence$ !ut also important contrasts. Legal positivismBs importance$ however$ is not confined to the philosoph# of law. 't can !e seen throughout social theor#$ particularl# in the wor,s of @arx$ e!er$ and Cur,heim$ and also 1though here unwittingl#3 among

man# law#ers$ including the American legal realists% and most contemporar# feminist scholars. Although the# disagree on man# other points$ these writers all ac,nowledge that law is essentiall# a matter of social fact. Dome of them are$ it is true$ uncomforta!le with the la!el legal positivism% and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Law#ers often use positivist% a!usivel#$ to condemn a formalistic doctrine according to which law is alwa#s clear and$ however pointless or wrong$ is to !e rigorousl# applied !# officials and o!e#ed !# su!jects. 't is dou!tful that an#one ever held this view; !ut it is in an# case false$ it has nothing to do with legal positivism$ and it is expressl# rejected !# all leading positivists. Among the philosophicall# literate another$ more intelligi!le$ misunderstanding ma# interfere. Legal positivism is here sometimes associated with the homon#mic !ut independent doctrines of logical positivism 1the meaning of a sentence is its mode of verification3 or sociological positivism 1social phenomena can !e studied onl# through the methods of natural science3. hile there are historical connections$ and also commonalities of temper$

among these ideas$ the# are essentiall# different. The view that the existence of law depends on social facts does not rest on a particular semantic thesis$ and it is compati!le with a range of theories a!out how one investigates social facts$ including non=naturalistic accounts. To sa# that the existence of law depends on facts and not on its merits is a thesis a!out the relation among laws$ facts$ and merits$ and not otherwise

a thesis a!out the individual relation. )ence$ most traditional natural law% moral doctrines==including the !elief in a universal$ o!jective moralit# grounded in human nature==do not contradict legal positivism. The onl# influential positivist moral theories are the views that moral norms are valid onl# if the# have a source in divine commands or in social conventions. Duch theists and relativists appl# to moralit# the constraints that legal positivists thin, hold for law.6 A positivist account of the existence and content of law offers a theor# of the validit# of law in one of the two main senses of that term. : Aelsen sa#s that validit# is the specific mode of existence of a norm. An invalid marriage is not a special ,ind of marriage having the propert# of invalidit#; it is not a marriage at all. 'n this sense a valid law is one that is s#stemicall# valid in the jurisdiction == it is part of the legal s#stem. This is the "uestion that positivists answer !# reference to social sources. 't is distinct from the idea of validit# as moral propriet#$ i.e. a sound justification for respecting the norm. 9or the positivist$ this depends on its merits. <ne indication that these senses differ is that one ma# ,now that a societ# has a legal s#stem$ and ,now what its laws are$ without having an# idea whether the# are morall# justified. 9or example$ one ma# ,now that the law of ancient Athens included the punishment of ostracism without ,nowing whether it was justified$ !ecause one does not ,now enough a!out its effects$ a!out the social context$ and so forth. ?o legal positivist argues that the s#stemic validit# of law esta!lishes its moral validit#$ i.e. that it should !e o!e#ed !# su!jects or applied !# judges. Even )o!!es$ to whom this view is sometimes ascri!ed$ re"uired that law actuall# !e a!le to ,eep the peace$ failing which we owe it nothing. *entham and Austin$ as utilitarians$ hold that such "uestions alwa#s turn on the conse"uences and !oth ac,nowledge that diso!edience is therefore sometimes full# justified. Aelsen insists that The science of law does not prescri!e that one ought to o!e# the commands of the creator of the constitution%. E )art thin,s that there is onl# a prima facie dut# to o!e#$ grounded in and thus limited !#

Legal Positivism. 1$r!t '#+l$!hed 1r$ Jan 3, 2223

)arris$ J. .1&5E53 Law and Legal Science: An Inquiry into the oncepts Legal 4ule

and Legal D#stem. <xford: 7larendon 8ress.

fairness == so there is no o!ligation to unfair or pointless laws. 2 4a+ goes further still$ arguing that there isnBt even a prima facie dut# to o!e# the law$ not even in a just state. 5 The peculiar accusation that positivists !elieve the law is alwa#s to !e o!e#ed is without foundation. )artBs own view is that an overweening deference to law consorts more easil# with theories that im!ue it with moral ideals$ permitting an enormous overvaluation of the importance of the !are fact that a rule ma# !e said to !e a valid rule of law$ as if this$ once declared$ was conclusive of the final moral "uestion: F<ught this law to !e o!e#edG%.&H According to ).L.A. )art$ a contemporar# legal positivist$ the essence of legal positivism is the separation thesis.%&& Deparation thesis: having a legal right to do something does not entail having a moral right to do it$ and vice versa; having a legal o!ligation to do something does not entail having a moral right to do it$ and vice versa; having a legal justification to do something does not entail having a moral justification$ and vice versa; etc.

Aelsen$ )ans 1 &5:E3. Pure Theory of Law$ trans. @. Anight. *er,ele#: -niversit# of

7alifornia 8ress.

)art$ ).L.A.1&5663 Are There An# ?atural 4ightsG% :> Philosophical !eview$ pp. &E6=


4a+$ Joseph 1&5E53. The Authority of Law. <xford: 7larendon 8ress.


)art$ ).L.A 1&5623. 8ositivism and the Deparation of Law and @orals$% E6. <xford: 7larendon 8ress.

3art, 3.*." 41958). 6 o!$t$,$!m and the .e'arat$on of *a( and 7oral!,8 71 3ar,ard *a( 9e,$e( 593 re'r. $n h$! E!!ay! $n

J#r$!'r#den&e and h$lo!o'hy 41983). Oxford: Clarendon re!!