Legal positivism
In legal philosophy, legal positivism is the theory that the existence of the law and its content depend on social facts, such as acts of legislation, judicial decisions, and customs, rather than on morality. This contrasts with theories such as natural law, which hold that law is necessarily connected to morality in such a way that any law that contradicts morality lacks legal validity.
Thomas Hobbes defined law as the command of the sovereign. This idea was elaborated in the 18th and 19th centuries by legal philosophers such as Jeremy Bentham and John Austin, who argued that a law is valid not because it is intrinsically moral or just, but because it comes from the sovereign, is generally obeyed by the people, and is backed up by sanctions. Hans Kelsen developed legal positivism further by separating law not only from morality, as the early positivists did, but also from empirical facts, introducing the concept of a norm as an "ought" statement as distinct from a factual "is" statement. In Kelsen's view, the validity of a legal norm derives from a higher norm, creating a hierarchy that ultimately rests on a "basic norm": this basic norm, not the sovereign, is the ultimate source of legal authority.
In addition to Kelsen, other prominent legal positivists of the 20th century include H. L. A. Hart and Joseph Raz.
Etymology and semantics
The term positivism in legal positivism is connected to the sense of the verb to posit rather than the sense of positive. In this sense, the term positivism is derived from Latin positus, the past participle of ponere, meaning "to place" or "to put". Legal positivism holds that laws are rules established by human beings, and that this act of positing the law makes it authoritative and binding.Concept
According to the positivist view, the source of a law is its enactment or recognition by a legal authority that is socially accepted and capable of enforcing its rules. The merits of a law are a separate issue from its legal validity: a law may be morally wrong or undesirable, but if it has been enacted by a legal authority with the power to do so, it is still a valid law.Leslie Green summarises the distinction between merit and source: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited ; as we might say in a more modern idiom, positivism is the view that law is a social construction."
Legal positivism does not claim that the laws so identified should be obeyed, or that there is necessarily value in having clear, identifiable rules. Indeed, laws may be quite unjust, and the government may be illegitimate; if so, there may be no obligation to obey the law. Moreover, the fact that a law has been found to be valid by a court does not mean that the court should apply it in a particular case. As John Gardner has said, legal positivism is "normatively inert". It is a theory of law, not a theory of legal practice, adjudication, or political obligation, and legal positivists generally maintain that intellectual clarity is best achieved by separating these issues for independent analysis.
Inclusive and exclusive legal positivism
often distinguishes between two types of legal positivism: inclusive and exclusive legal positivism. The former accepts, whereas the latter denies, that there may be cases in which determining what the law is follows from considerations about what the law ought to be according to morality.Both qualify as legal positivism because they share two basic tenets. First, the "social thesis": law is essentially a human creation and therefore its content is ultimately determined by social facts, such as acts of legislation, judicial decisions, and customs. Second, the "separation thesis": law and morality are conceptually distinct phenomena and therefore a norm can belong to the law even if is unjust or unfair.
On the bedrock of these two shared assumptions, the two theories differ in their interpretation of how morality might influence law.
According to inclusive legal positivism it is possible that the criteria for identifying valid laws in a given legal system incorporate moral standards. In other words, while law and morality are conceptually distinct, a particular legal system might, as a matter of fact, make the validity of some laws dependent on their moral merit. Typically, this happens when a constitution includes a clause requiring laws to respect human rights, or human dignity, or equality, thus incorporating some moral standard into the legal system. Conformity with moral principle may be a condition of legal validity. However, this is not necessarily the case, but is contingent upon the content of the law and its rule of recognition, which may or may not include moral standards. Inclusive legal positivism has been embraced or defended by authors such as Jules Coleman, Matthew Kramer, Wil Waluchow, and H. L. A. Hart himself.
According to exclusive legal positivism the validity of a law is never determined by its moral content, but depends only on its source and its compliance with the legal system's formal procedures. Therefore, if the constitution reference moral principles, these principles are not incorporated into the law as moral standards but rather the constitution is authorising the judges and the other law-applying institutions to develop and modify the law by resorting to moral reasoning. Conformity with moral principle is necessarily not a condition of legal validity. Exclusive legal positivism is mainly associated with the name of Joseph Raz and has been advocated by authors such as Brian Leiter, Andrei Marmor and Scott Shapiro.
To sum up, inclusive positivism allows for the possibility that morality can play a role in determining legal validity in some legal systems, while exclusive positivism holds that morality can never be a direct criterion for legal validity, even if a legal system references moral concepts.
Methodological, theoretical and ideological legal positivism
In 1961 Norberto Bobbio argued that the phrase "legal positivism" is used with three different meanings, referring to different and largely independent doctrines, which he called "positivism as a way of approaching the study of law", "positivism as a theory or conception of law" and "positivism as an ideology of justice".Methodological legal positivism is a value-free, scientific approach to the study of law and, at the same time, is a way of conceiving the object of legal knowledge. It is characterised by a sharp distinction between real law and ideal law and by the conviction that legal science should be concerned with the former.
Theoretical legal positivism is a cluster of theories about the nature of law related to a "statalist" conception of law. They include the theory that the law is a set of commands issued by the sovereign authority, whose binding force is guaranteed by the threat of sanctions ; a theory of legal sources, in which statute law enjoys supremacy ; a theory of the legal order, which is supposed to be a complete and coherent system of norms, free of gaps and contradictions ; and a theory of legal interpretation, conceived of as a pure act of cognition: a mechanical and logical activity.
Finally, ideological legal positivism is defined by Bobbio as the normative theory according to which positive law ought to be obeyed.
Compared to legal realism
Sometimes the term 'positivist' is used in a pejorative sense to condemn a doctrine according to which the law is always clear and, however unjust, must be strictly enforced by officials and obeyed by subjects. When identified with legal formalism, legal positivism is opposed to legal realism. Legal positivism, understood as formalism, believes that in most cases the law provides definite guidance to its subjects and to judges; legal realists, on the other hand, often embrace rule scepticism, claiming that legal rules are indeterminate and do not constrain judicial discretion. However, both legal positivism and legal realism believe that law is a human construct. Moreover, most realists adopted some version of the positivist doctrine of the separation of law and morality.According to Brian Leiter, the view that positivism and realism are incompatible positions is probably largely due to Hart's critique of legal realism, but American legal realists were "tacit legal positivists" who acknowledged that all law stems from authoritative sources such as statutes and precedents. Most legal realists denied the existence of natural law, had a scientific approach to the law based on the distinction between describing and evaluating the law, and denied the existence of an objective obligation to obey the law; they therefore qualified as legal positivists.