Legal positivism

John Austin

Legal positivism is a school of thought in jurisprudence and the philosophy of law. It holds that the validity of a law is not related to its moral content but is instead determined by its sources and the manner in which it was enacted. Legal positivism is often contrasted with natural law theory, which posits that law is inherently linked to moral principles.

Key Concepts

Legal positivism is characterized by several key concepts:

• **Separation of Law and Morality**: Legal positivists argue that there is a clear distinction between law as it is (de facto) and law as it ought to be (de jure). This principle is often summarized by the phrase "the separation of law and morals."
• **Social Facts**: According to legal positivism, the existence and content of law are determined by social facts and not by its merits or demerits.
• **Command Theory**: Early legal positivists like John Austin proposed that laws are commands issued by a sovereign and backed by threats of sanctions.
• **Rule of Recognition**: H.L.A. Hart introduced the concept of the "rule of recognition," a social rule that serves as the foundation for identifying valid legal norms within a given legal system.

Historical Development

Legal positivism has evolved through various stages:

• **Classical Legal Positivism**: The roots of legal positivism can be traced back to the works of Thomas Hobbes and Jeremy Bentham. Bentham's utilitarian approach to law and Austin's command theory are foundational to classical legal positivism.
• **Analytical Legal Positivism**: In the 20th century, H.L.A. Hart's "The Concept of Law" provided a more sophisticated account of legal positivism, emphasizing the importance of social practices and the rule of recognition.
• **Modern Legal Positivism**: Contemporary legal positivists like Joseph Raz and Jules Coleman have further refined the theory, addressing criticisms and incorporating new insights from philosophy of language and social theory.

Criticisms

Legal positivism has faced several criticisms:

• **Moral Critique**: Critics argue that legal positivism's separation of law and morality can lead to the endorsement of unjust laws.
• **Interpretive Challenges**: Some scholars contend that legal positivism fails to account for the interpretive nature of legal reasoning and the role of moral considerations in judicial decision-making.
• **Incompleteness**: Critics like Ronald Dworkin have argued that legal positivism cannot adequately explain the principles that underlie legal systems and judicial decisions.

Related Pages

• Jurisprudence
• Philosophy of law
• Natural law
• John Austin (legal philosopher)
• H.L.A. Hart
• Joseph Raz
• Jeremy Bentham
• Thomas Hobbes
• Ronald Dworkin

See Also

• Rule of recognition
• Command theory
• Utilitarianism
• Social theory
• Philosophy of language

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