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Legal positivism

Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law. The principal claims of legal positivism are:

  • that laws are rules made by human beings; and
  • that there is no inherent or necessary connection between law and morality.

Legal Positivism and Natural Law

Stated this way, it may surprise some that this is a controversial concept. Legal positivism stands in opposition to various contrary ideas that call themselves the tradition of natural law, a body of legal theory asserting that there is an essential connection between law and justice. Legal positivism claims incorporates the separation thesis: the idea that legal validity has no essential connection with morality or justice.

Legal positivism in the English speaking world

In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the philosopher of utilitarianism, who in turn borrowed concepts from Thomas Hobbes. Bentham drew a sharp distinction between people he called "expositors," whose task it was to explain what the law in practice was; and "censors," those who criticised the law in practice and compared it to their notions of what it ought to be. The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather than the criticisms of the censors.

The legal philosopher John Austin, attempting to put the system in a nutshell, held that the distinguishing feature of a legal system is the existence of a sovereign whose authority is recognised by most members of a society, but who is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents. Of course, in the Republic of the United States, the citizens have granted through the Constitution authority and power to the government to determine and enforce the laws. Austin would agree that there is nothing in legal positivism that forbids a hierarchy of laws from existing, or that the power be vested always in a single person or group.

In another sense, according to the distinguished American judge Oliver Wendell Holmes, legal positivism is in a sense the science of those who observe and give counsel as to what governments might do. According to Holmes, law is not so much a body of rules and procedures as it is a body of knowledge that predicts what courts are likely to do. Holmes's is a more lawyerly sort of legal realism; it acknowledges that the rules printed in statute books and precedents can be swayed by effectively marshalled cases and legal argument. A prediction of how the judge will act, though, can at best be stated in terms of probability.

Law and ethics

Legal positivism also implies that law is something separate from ethics. There are, it is argued, legal rules that have no ethical component. In the United Kingdom, it is law that motor vehicles must keep to the left of a two-lane street; in the United States, they keep to the right. The advantage of a uniform rule here is hard to quarrel with; it would seem difficult to make the argument that an everlasting yardstick of morality requires one and condemns the other. Here, having a rule, any rule, is more important than having one rule or the other.

Of course, not all legal decisions are as free of ethical content as this one is. Legal positivism is not synonymous with ethical positivism , or for that matter with moral relativism. It is at least a possible viewpoint that there exists a natural ethical code while maintaining that its translation into law remains local and contingent. The argument of legal positivism is not that ethics is irrelevant to every law; rather, that law and ethics are two different things, two fields that occasionally overlap but whose underlying logic remains separate. The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon.

Against this view, Lon L. Fuller argues that law has its own internal morality; for example, laws must be promulgated, announced to the public; (relatively) intelligible; and not baldly self-contradictory. Unless laws fulfill these requirements, they cannot fulfill their role in the social order, for without fulfilling these requirements, it would be impossible for anyone to know the laws or obey them. According to Fuller, these requirements are ethical requirements, and they constrain law even without regard to any rules of ethics exterior to the legal process.

The tradition of natural law thinking that asserts that natural justice is elaborated through the dispute-resolving function of the courts and the extension of precedent by analogy through the common-law process is not helped by Fuller's argument. As A. P. Herbert observed, "there is no precedent for anything until it is done the first time." Sooner or later, judges will have to make new rules to resolve new disputes, and these new rules are not known to the general public until the moment they are announced.

Ronald Dworkin distinguishes between principles and rules. Rules are like the law that tells you which side of the street to drive on. They are essentially binary in application; they either govern a case or they don't. Principles are substantially more vague statements of policy and ethical norms, brocards, and similar maxims. From the perspective of the common law tradition, the difference between rules and principles is roughly analogous to the difference between law and equity. A classic case in which principle trumped law is the common law decision that held that a murderer cannot inherit his victim's property, despite the fact that the victim's will said unambigously that the murderer was the heir, and the statute of wills said the will was valid and should be carried out.

Robert Alexy argues that every legal rule is ethically relevant, since it affects freedom, and freedom is a matter of obvious ethical significance.

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Last updated: 05-07-2005 17:31:59
Last updated: 05-13-2005 07:56:04