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Legal positivism is the name given to a theory of law, developed by utilitarian jurists like Jeremy Bentham and John Austin, and most famously developed in the 20th century by the Austrian Hans Kelsen and the Englishman Herbert Hart. Legal positivists aimed to develop a theory of what constituted a legal system which was value-free—that is, independent of moral content and amenable to empirical analysis. This theory would establish an analytical foundation for legal analysis autonomous of both political and sociological explanations of legal institutions and practices. Austin believed that law could be defined as the commands of the sovereign, a position which created some difficulties for ‘laws’ which did not appear to have this character. These difficulties were resolved by Kelsen who argued that any genuine legal system had a Grundnorm, or basic norm, which identified the ultimate source of legal authority: Hart\'s ‘rule of recognition’ describes the same notion.
Whether in its modern Hartian or Kelsenian variations, the key ideas of legal positivism are straightforward. Legal systems are sets of rules (interpreted in a broad sense) applied by judges as part of societal regulation by states. Laws are laws by virtue of their form, rather than of their moral or political content. The legal system in any state worthy of the name operates under an extra-legal Grundnorm (Kelsen) or ‘rule of recognition’ (Hart). The validity of laws is determined within the empirically relevant Grundnorm or rule of recognition.
Applied to liberal democratic states, legal positivism suggests at least three key propositions. First, the formal role of the judicial system is to determine the laws established by the constitution and validly made by the democratically authorized law-makers. It is a matter for empirical investigation by other disciplines to establish whether or not any given judicial system fulfils that role: whether or not judges subvert the laws because of their class, ethnic, religious, gender or ideological backgrounds; whether or not judges defer to (or obstruct) the executive, public agencies, minorities or individuals rather than uphold the laws; and whether or not judges are competently educated, trained and recruited for the tasks they are required to perform. Second, for legal positivists the relevant operational background normative theory for judges and lawyers in a liberal democratic state is the one which establishes the extra-legal source of valid laws. In the case of the US the relevant theory is that the (validly amended) Constitution provides the Grundnorm; in the case of the UK the relevant theory is that the Grundnorm is provided by the doctrine of parliamentary sovereignty (qualified, perhaps, by the UK\'s membership of the European Community).
Such background theories, while important, may not, of course, be of much help in deciding judicial ‘hard cases’ since laws may be ambiguous and conflict. However, legal positivists do not maintain that legal systems are perfectly-integrated hierarchies in which there is no role for debate and argument about the meaning and interpretation of laws; nor that there are no gaps or contradictions in any given country\'s legal system. It is also a misunderstanding of legal positivism to imply that it means that judges do not, when interpreting the law, have recourse to normative principles. Indeed one merit of legal positivism is that it recognizes that there may be no coherence of a moral or political kind in a given constitutional or administrative order, that rival judicial doctrines may be competing to influence hard judicial decisions, while still maintaining that there is a definite legal system.
Perhaps the strongest merit of legal positivism is precisely that it helps define appropriate boundaries between the subject of law, including its technical interpretation by judges and lawyers, and discussions of the extra-legal determination of law. This demarcation had negative consequences in so far as it apparently established intellectual barriers to entry and enquiry on either side of this division. However, there is no logical reason why legal positivism had to have these consequences. Jules Coleman\'s book Markets, Morals and the Law shows that legal positivism need not be an obstruction to the fruitful intermarriage of law, economics and political science.
Finally, legal positivism, unlike other approaches to law, is more likely to counsel scepticism on the subject of whether ‘international law’ actually exists, on the grounds that there is no Grundnorm or rule of recognition which can establish the authorized source of ‘international law’. BO\'L
See also justice; natural law; rule of law; sovereignty.Further reading H.L.A. Hart, The Concept of Law; , H. Kelsen, General Theory of Law and the State. |
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