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Classical legal positivism

Among the many labels you will encounter in your jurisprudence course, few have gener-ated the confusion and the controversy that are associgener-ated with the apparently innocu-ous phrase ‘legal positivism’. Use it with caution. Until fairly recently, to call someone a

‘positivist’ may excite an unexpected reaction: in some quarters it is regarded as a fairly serious term of abuse!¹

We are, of course, concerned here less about such sensitivity than arriving at a reasona-bly clear understanding of this frequently abused term and the theories of law espoused by those jurists who might legitimately be described as ‘positivists’. It is therefore important that the confusion attending the use of the term be clarifi ed at once, particularly because a proper grasp of these theories is an essential prerequisite to an understanding of jurisprudence.

Aft er attempting to clarify the term, this chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Chapter 4 then investigates contemporary legal positivism through the works of some of its leading exponents: HLA Hart, Hans Kelsen, Joseph Raz, Jules Coleman, and others.

3.1 What is legal positivism?

At the outset, it is important to recognize that positivism is not an exclusively juris-prudential approach. Its central claim—whether it is logical, scientifi c, philosophical, sociological, or legal positivism—is the view that the only genuine knowledge is scientifi c knowledge which emerges only from the positive confi rmation of theory by the appli-cation of rigid scientifi c methods. Its originator was the nineteenth-century thinker, Auguste Comte (generally regarded as the founder of sociology) whose ideas infl uenced the so-called Vienna Circle of logical positivism that developed in the early years of the twentieth century. Its members sought to combine empiricism (the view that we can know things only through observation) and rationalism (the idea that what we know must include an element that is not derived from observation alone). In the 1920s and 1930s the movement grew in importance and spread to Britain and the United States. Its fun-damental principles included an antagonism towards metaphysics, particularly ontology and a priori propositions. In a nutshell, it held that all knowledge rests on logical inference from simple ‘protocol sentence’ grounded in empirical, observable facts. It emphasized the test of verifi ability: the doctrine that a proposition is ‘cognitively meaningful’ only when there exists a fi nite means by which to determine conclusively its truth or falsity.

Legal positivism attempts to identify the key features of the legal system that are posited by legislators, judges, and so on. Yet the theory has generated substantial misunderstand-ing. Indeed the confusion is so acute that, in the view of at least one distinguished writer,

1 See Chapter 2 n 2.

the term ‘legal positivism’ ought to be abandoned altogether.² And Professor Summers was driven to this conclusion by identifying no less than ten diff erent positions which are described as ‘positivist’. It is, however, unlikely that, whatever the extent of the ambiguity surrounding the phrase, it will cease being a central term of art in jurisprudence. Having a clear idea of what it is the positivists say about law and (as will emerge later) how this diff ers from other views (especially the natural law approach: see Chapter 2) is therefore essential.

A valuable starting point is Professor Hart’s important essay, ‘Positivism and the Separation of Law and Morals’³ where he enumerates fi ve main views that are generally associated with legal positivism, as follows:

1. Th at laws are commands of human beings.

2. Th at there is no necessary connection between law and morals.

3. Th at the analysis of legal concepts is (i) worth pursuing, (ii) distinct from (though not hostile to) sociological and historical enquiries and critical evaluation.

4. Th at a legal system is a ‘closed logical system’ in which correct decisions may be deduced from predetermined legal rules by logical means alone.

5. Th at moral judgments cannot be established, as statements of fact can, by rational argument, evidence, or proof (this is known as ‘non-cognitivism in ethics’ and was discussed in 2.7).

While, in general terms, it is fair to describe certain jurists as ‘positivists’ (Bentham, Austin, Kelsen, and Hart himself are the most important), students are sometimes too quick to treat them as if they belonged to a largely undiff erentiated ‘school’ which adheres to certain general views about the law. At a fairly high level of abstraction, this is not entirely inaccurate. But it is important to recognize that not only do each of these writers pose diff erent questions, but their method of enquiry and general objectives are oft en as diff erent as the features they share. Th is ought to become evident below.

If one were to express the highest common factor among these writers it would probably be their emphasis on describing law by reference to formal rather than moral criteria. In their pursuit of a ‘scientifi c’ analysis of law and legal rules, it is their contention that the law as laid down (positum) should be kept separate—for the purpose of study and analysis—

from the law as it ought morally to be. In other words, that a clear distinction must be drawn between ‘ought’ (that which is morally desirable) and ‘is’ (that which actually exists).

3.1.1 What legal positivism is not

It does not follow from this (and this is a point that Professor Hart is at pains to stress in the essay mentioned above) that a legal positivist is unconcerned with moral questions or even that he rejects the important infl uence of morality on law. Indeed, all of these jurists have been deeply concerned to criticize the law and to propose means of reforming it. Th is nor-mally involves moral judgments. But positivists do share the view that the most eff ective method of analysing and understanding law and the legal system involves suspending moral judgment until it is established what it is we are seeking to explain. In explaining the operation of the internal combustion engine, a positivist might argue, it would not

2 RS Summers, ‘Th e New Analytical Jurists’ (1966) 41 New York University Law Review 861, 889–90.

3 (1958) 71 Harvard Law Review 593, 601 n 25. See HLA Hart, Th e Concept of Law (Oxford: Clarendon Press, 1961), 253. See too 2nd edn by PA Bulloch and J Raz (Oxford: Clarendon Press, 1994), 253. A third edition, introduced by Leslie Green, with a postscript edited by Joseph Raz and Penelope Bulloch is to be published by Oxford University Press at the end of 2012.

help if we were to suggest alternatives to the carburettor or point out the limitations of the air fi lter. We should fi rst want to know how the engine works. Criticism is a legitimate, but separate enterprise.

Nor do positivists necessarily subscribe to the proposition (oft en ascribed to them) that unjust or iniquitous laws must be obeyed—merely because they are law. Indeed even Austin (to say nothing of Bentham as utilitarian and Hart as moralist) acknowledges that disobedience to evil laws is legitimate if it would promote change for the good. As Hart puts it in a widely quoted statement:

[T]he certifi cation of something as legally valid is not conclusive of the question of obedi-ence . . . however great the aura of majesty or authority which the offi cial system may have, its demands must in the end be submitted to a moral scrutiny.⁴

And Kelsen insists that the diff erence between legal and moral discourse is so great that we cannot directly confront a legal ‘ought’ with a moral ‘ought’. Th e important question of the relationship between legal positivism and natural law theory was considered in Chapter 2 where it was seen that the general philosophy of positivism represented, in large part, a reaction against the allegedly unscientifi c metaphysics of natural law doctrine.

Legal positivism has, in turn, been criticized for its preoccupation with the question ‘What is the law?’ and its failure to address the more fundamental question ‘What is law?’

To deny the enduring relationship between law and power would be folly. Th ose who exercise political power normally do so through the enactment of law, whether or not they are themselves subject to it. Th is inhospitable reality, while it may not take us very far, identifi es an important distinction between the law and other forms of social control. In particular, law’s fundamentally coercive nature.

But this generalization leaves unanswered many important, and oft en uncomfortable, questions about the nature of law. Th ese issues cannot sensibly be considered, however, without an understanding of the claim itself. What does it mean to say that law is little more than the decisions of those in power? Is it to divest law of moral content? Does it entail a rejection of attempts to distinguish good law from bad, the just from the unjust?

Th is chapter and the next consider the theories most closely associated with a purely analytical view of law: so-called legal positivism. As will be examined in greater detail in Chapter 4, contemporary legal positivism has two main factions. Th e former, ‘hard’

positivists (also known as ‘exclusivists’), argue that legality does not depend on content or moral merit. ‘Soft ’ positivists (or ‘inclusive positivists’ or ‘incorporationists’), accept, however, that content or merit may be a condition of validity where the rule of recognition so specifi es.

One should, as I said, always be suspicious of generalization. It is, however, possible to identify a cluster of relatively uncontroversial defi ning characteristics of both legal posi-tivism and natural law theory. Th us Richard Tur has sketched the following spectrum:

[C]lassical natural law and, perhaps Kant himself might be placed at the natural law extreme and Frank, if interpreted as an extreme particularist, and the early Ross, adjacent to the positivist extreme. Bentham, for whom everything must pay up in the hard cur-rency of fact, and Austin occupy a position fairly adjacent to the positivist extreme but, in comparison to Frank, the commitment to some degree of legal system would justify a slightly more central position. Hart’s theory would be even more centrally located, not

4 Th e Concept of Law, 206.

[T]he certifi cation of something as legally valid is not conclusive of the question of obedi-ence . . . however great the aura of majesty or authority which the offi cial system may have, its demands must in the end be submitted to a moral scrutiny.⁴

[C]lassical natural law and, perhaps Kant himself might be placed at the natural law extreme and Frank, if interpreted as an extreme particularist, and the early Ross, adjacent to the positivist extreme. Bentham, for whom everything must pay up in the hard cur-rency of fact, and Austin occupy a position fairly adjacent to the positivist extreme but, in comparison to Frank, the commitment to some degree of legal system would justify a slightly more central position. Hart’s theory would be even more centrally located, not

so much because of the minimum core of empirical good sense which he perceives in the terminology of natural law but because his positivism purports to be normative rather than fact-based. Given, however, the facticity of the rule of recognition, Hart might prop-erly remain nearer the positivist end of the continuum. Aquinas, as interpreted by Finnis, clearly cannot go too far out from the centre towards the natural law end partly because, apparently, he allows that an unjust law is still a law but primarily because he apparently rejects the rationalist stance that all decisions fl ow from logical deductions, allowing for

‘determinations’ in his system . . . [G]iven a stronger normativity than Hart’s, [Kelsen]

must be placed nearer to natural law than Hart’s theory.⁵

Th e implications of this continuum should become clearer as you progress through the following pages.