Legal positivism

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

  • laws are rules made, whether deliberately or unintentionally, by human beings;
  • there is no inherent or necessary connection between the validity conditions of law and ethics or morality.

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[edit] Legal positivism and natural law

Legal positivism stands in opposition to various contrary ideas in the tradition of natural law - a body of legal theory asserting that there is an essential connection between law and justice / morality. Many legal positivists endorse the separation thesis: the idea that legal validity has no essential connection with morality or justice. A law is a valid law if posited, in the proper manner, by a recognized authority, regardless of its moral implications.

[edit] Legal positivism in the English-speaking world

In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called:

  • Expositors - those who explained 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 recognized 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' 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.

Insofar as positive laws are, as John Austin writes, commands of a sovereign, or, as Holmes argues, decisions of a court, they might appear as arbitrary. Similarly, Niklas Luhmann argues that the essence of positive law is that it is a decision. “We can reduce this concept of positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable).” (Luhmann, 1987) Positive law, therefore, is changeable law. For example, abortion may be illegal yesterday, legal today, and illegal tomorrow. The malleability of law has, of course, great advantages. Law can be adapted to pressing needs. Especially in the fast-paced world of business, the adaptability of modern law enables it to be a powerful instrument for the willful promotion and regulation of social and economic relations.

It is a common mistake, therefore, to think that positive laws, as willful and changeable, are therefore arbitrary. Precisely because positive laws are willful, positive laws are those laws that must justify themselves with reason. Positive laws are precisely those laws most in need of reasons and justifications. It is for this reason that the rise of positive laws is accompanied by the rise of legal science as a means of offering these reasons and justifications. It is no surprise, therefore, that law, today, is infused with the language and practice of the social sciences, from law and economics to the sociology of law and other normative socio-legal studies.

[edit] Law and ethics

Legal positivism implies that law is something that can be separated from ethics. In this view it is possible that there are laws without ethical content or legal rules that have no ethical component, and laws that are positively evil, such as the laws of slavery and segregation.

Some natural lawyers argue that even the most pedestrian of laws carry the moral or ethical requirement that the State of Nature may be abridged only for the basic maintenance of the greater society. Such order is a moral imperative. Thus, a law requiring driving on the right side of the road indeed has a philosophically moral basis. Not that right is socially preferable to left but rather that right is socially preferable to nothing.

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, it may be argued that law has its own internal morality; for example, laws must be promulgated, announced to the public; 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. These requirements are ethical requirements, and they constrain law even without regard to any rules of ethics exterior to the legal process.

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[edit] Further reading