Classical Legal Positivism
Legal positivism asserts that law is law based not on its merits, but on its source. If the source (of law) has validity and is obeyed by several people, it is law, no matter whether it is deemed a “good” or “bad” law.
Legal Positivism vs. Natural Law
Javert, the police officer, is the positivist believer that the ‘law-is-the-law’. He abides by the letter of the law. He is a radical for his time for his thinking that the law is not based on divine punishment, it is scientific, rational, and empirical: a command disobeyed requires a sanction and punishment. Javert’s legal positivism is juxtaposed to Jean Valjean’s understanding of law, that is based on morality, context, and relationship.
Legal Positivism
is the thesis that the existence and content of law depends on its source and not on its merits. For legal positivists, the legal system is a system ‘posited’ by people, to be imposed on people. Legal philosophy, or jurisprudence, has the task not to wonder how to make law different or better, but to understand the nature of legal systems.
The Enlightenment and Early Legal Positivism
This era coincided with imperial expansion to colonial territories, widespread resource extraction, colonialism, slavery, and ongoing wars and violence.
Legal Positivism was born out of the Enlightenment era — legal positivism posits a ‘science of jurisprudence’. For legal positivists, law was no longer about morality, divine or eternal laws, or even choice, desire, or what we ‘ought’ to do, as we saw with natural law.
Legal positivism is, for most legal training, the dominant conceptualisation and theory of law.
‘keep emotion out of this, it is the law’, or ‘it doesn’t matter what you think or feel is fair or right, this is the law’, or ‘the law is the law’
Jeremy Bentham (1748-1832)
For Bentham, law is the expression of the will of the sovereign: a command. Despite his reformist views, Bentham believed in security. Bentham believed that the law needed to give security. Law needed to be consistent, predictable, and stable.
According to Bentham, customary laws, and unwritten laws which may include international laws and even constitutional law, were not really law. Law, for Bentham, concerned the orders and rules guiding people towards greater pleasure and less pain
Bentham believed that if people thought they were being watched they would moderate their behaviour, whether or not they were indeed being watched.
Law = commanding presence.
John Austin (1790-1859)
Like Bentham, he believed that law could be a science.
Austin believed that it was possible, and valuable, to have a morally neutral theory of law. He is known for introducing an analytical approach to legal theory, meaning that he analysed law as an empirical science, asking questions around key concepts of legal right, legal duty and legal validity. Law, for Austin like Bentham, was understood not as social morality or custom, but through a command-theory, or top-down approach.
Austin argued that law could be pure science ‘set by intelligent and rational beings to intelligent and rational beings’. To contradict them, or break them, was akin to — in Javert’s fictional words — ‘madness’ and the irrational.
For Austin, building from Bentham, a law is a command. A command equals a duty.
Contemporary Legal Positivism
According to legal positivism, whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative.
For example, legislative enactments, judicial decisions, or social customs.
According to positivism, law is a matter of what has been posited: ordered, decided, practiced, tolerated, and so on.
Contemporary Legal Positivism
Legal positivism does not say that law’s merits — whether it is good or not — are unimportant, or peripheral to the philosophy of law. Rather, legal positivists believe that law’s merits do not determine whether laws or legal systems exist.
H.L.A. Hart (1907-1992)
H.L.A. Hard believed that law is a system of rules.
secondary rules are the rules of the legal system and the processes through which law is defined and managed.
Hart identified that there are 2 minimum conditions for rules to constitute law:
- Citizens must accept the primary rules within a society.
- Officials of the society must accept the secondary rules of change, adjudication, and recognition as common standards of official behaviour.
Hart believed that while it is true where there is law, there is also morality. Morality and law are separate: this is his separability thesis.
Hans Kelsen (1881-1973)
He believed that law is a normative system that is founded on a grundnorm: a basic norm. For Kelsen, law was a scheme of interpretation, not an ideology nor a science.
Kelsen understood law as its own thing, its own system to be studied and empirically analysed.
In Kelsen’s book, Pure Theory of Law, he explains that the reason of the validity of a democratic, autocratic, capitalistic, socialistic, positive law, whether considered to be just or unjust, is always relative to specific societies and their basic norms.