Legal Positivism Research Paper

1. The Debate Between Legal Positivism And Natural Law

Ironically, Hobbes, who is widely credited to be the early progenitor of legal positivism, built his positivistic theory of law on a natural law base (Bobbio 1993, Fuller 1940). According to Hobbes, the necessity for peace and order is the fundamental precept of natural law. Given that the state of nature is, in his immortal phrase, ‘solitary, poore, nasty, brutish, and short,’ people join together and give over law-making and enforcing power to a Sovereign for the purpose of maintaining peace and order (Hobbes 1946, Chaps. XIV, XV). Thereafter, law consists of the commands of the Sovereign. Although the Sovereign is to be guided by reason in the establishment of law, even unjust commands are valid laws; to suggest otherwise would invite the disorder that will result if people were allowed to apply their own judgment to evaluate the law. Under Hobbes’ formulation, while natural law provides the initial foundation for positive law, once that foundation is established, natural law becomes irrelevant. It does not provide a continuing standard or test for the validity of the law.

This conclusion raises the issue that has long set legal positivists and natural law theorists at odds. Thomas Aquinas, citing Augustine, asserted that ‘A law that is not just, seems to be no law at all’ (Q. 96, A. 4, Obj. 3). ‘Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law’ (Q. 95, A. 2, Obj. 4). A similar statement was made by William Blackstone. ‘[N]o human laws are of any validity, if contrary to this [law of nature]’ (Boorstin 1996, p. 49). More recently, Lon Fuller asserted that there is a minimum moral element to law, without which it is ‘not simply bad law, but not law at all.’ (Boorstin 1999, p. 197).

Legal positivists are adamantly opposed to this position. Austin, who produced the first widely influential articulation of the legal positivist position, wrote a scathing response to Blackstone. ‘Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and continually are enforced as laws by judicial tribunals’ (Austin, 1995, p. 158). ‘The existence of law is one thing; its merit or demerit is another.’ What law is, and what law ought to be, legal positivists insist, are separate questions.

Aside from the general confusion it engenders, the failure to maintain the separation between is and ought raises two particular political concerns for legal positivists (Hart, 1958, pp. 597–98). The first concern involves the persons who conclude, based upon his or her understanding of natural law, that the offensive positive law is invalid and, therefore, can be freely disregarded. An example of this is the radical antiabortionist who invokes natural law to justify illegal actions—including the execution of doctors who perform abortions—on the grounds that laws allowing abortion are invalid because they condone the killing of innocent lives. The second concern is that the identification of law with morality will lead people to be less critical of the law, their vigilance against it softened by the seductive assumption that the law is what it ought to be. Many legal positivists believe that the fact that a norm happens to have the status of ‘law’ does not of itself give rise to an obligation of fidelity (Schauer 1996). An obligation arises only after the law passes moral muster. Thus, legal positivists assert, maintaining the is ought distinction allows us to more critically evaluate the law from a moral standpoint. These two concerns, it should be observed, while not contradictory, are not entirely consistent, in so far as the first worries about people choosing to disregard the law on the grounds that it is invalid, while the second worries about people slavishly following the law because they assume it is necessarily morally worthy. These two concerns, pointing as they do in different directions, simultaneously expose legal positivism to the charge of being excessively conservative as well as the charge of being excessively radical.

The second concern, more so than the first, animates many legal positivists in their dispute with natural law theorists, and their concern is not a purely abstract one. In the aftermath of World War II, some natural law theorists blamed the legal positivist separation of law and morality for the failure of the German legal establishment to resist atrocities committed by the Nazi government through law (Hart 1958, pp. 615–21, Rommen 1998). The view that ‘law is law’ regardless of its immorality, according to Gustav Radbruch, led the German legal profession to be completely subservient to state legal power. The legal positivist response, besides questioning whether there is any empirical support for the asserted causal connection, is that this view fails to appreciate that the separation of law from morality has the effect of reducing the prestige of law and thereby exposing it to greater moral critique. Under this view, the fact that a pronouncement is valid law carries little weight, and an immoral law (valid as it may be) should be resisted. When viewed in these terms, the longstanding debate between legal positivists and natural law theorists is a narrow one. Legal positivists argue that a positive law is law, regardless of whether it is inconsistent with morality. Nevertheless, they immediately assert, a valid law can and should be evaluated from a moral standpoint, and not considered obligatory if found wanting. Many natural law theorists have asserted that consistency with natural law is a condition of the validity of positive law. An immoral law is, therefore, not ‘law’ at all, and carries no obligation (except perhaps is instances when a greater good might still be served by adherence to a bad law). However, anything that qualifies as law pursuant to this understanding automatically generates an obligation to comply. Whichever direction one approaches from, in the end both sides agree that an immoral positive law (whether or not characterized as ‘law’) generally does not give rise to any obligation to obey.

After generations of disagreement, there are now signs of a rapprochement. Finnis, the most influential modern exponent of natural law theory, argued that Aquinas was actually an early legal positivist, in the sense that he recognized that immoral laws were still in fact ‘laws,’ albeit deviant or deficient forms of law (Finnis 1980, 1996). A leading legal positivist, MacCormick (1992), has acknowledged that there are certain respects in which law or legality contains moral qualities, though he emphasized that this does not vitiate the separation thesis. Indeed, at base, only the separation thesis separates these two schools. If natural law theorists, like Finnis, are willing to acknowledge that an immoral law is still ‘law’ in positive law terms—a point that a number of natural law theorists have not actually contested—there are few reasons to maintain the mutual opposition. There is no inherent incompatibility between these two approaches. A legal positivist may, without contradiction, believe in natural law moral theory, and apply the moral precepts produced by this theory to evaluate the law.

To be sure, not everyone agrees that the debate is over, but the bulk of the discussion of late has shifted to other matters, away from the issue of validity. One aspect of this classical debate remains unresolved, however. Although it has attracted relatively little attention, it is of continuing relevance and bears mention. The primary focus of the debate has been on whether immoral laws are invalid; the reverse question this raises is whether natural law principles have the status of law even if not affirmatively recognized by the positive law. If the answer is yes, then the Nuremberg Trials, and more recently the trials of the German border guards prosecuted for shooting people attempting to escape former East Germany, were routine applications of pre-existing natural law principles with direct effect. If the answer is no, then (ignoring weak arguments that there were pre-existing applicable positive law prohibitions based upon general declarations of human rights) these trials can be condemned as extralegal impositions of power by the ultimate victors in a political battle. Furthermore, if the answer is no, a strong argument can be made that these trials themselves violated the natural law prohibition against the ex post facto imposition of law, criminalizing and punishing behavior that was not illegal at the time it was committed. The issue of the legitimacy and legality of these kinds of actions, with serious unresolved moral as well as practical implications, will continue to arise as long as there is an attempt to hold government officials responsible for putatively legal conduct committed while in office.

2. The Core Elements Of Legal Positivism

Awareness of the context within which legal positivism arose and developed is essential to an understanding of the theory, but it does not capture nor exhaust the insights contained within the theory. As with every theoretical tradition, there are many varieties of legal positivism. Of late, as the dispute between legal positivism and natural law has moderated, internal divisions within legal positivism have taken center stage in the theoretical discussion. The nuances of the internal debate need not be explored. It takes place within shared parameters that characterize most legal positivists, and these parameters are what matter. Before describing these parameters, it should be noted that there have been two dominant versions of legal positivism in the twentieth century, the first by Kelsen and the second by Hart. The essential difference between the theories lies in their orientation (Bix 1996, Chap. 6): Hart had an empirical bent, whereas Kelsen constructed an abstract system consisting of a hierarchy of norms (Kelsen 1967). The focus in this discussion will be on Hart’s version, because, owing to its greater clarity and persuasiveness, it has eclipsed Kelsen’s version substantially.

Hart’s The Concept of Law (1961) is without question the most important legal positivist text, and probably the most influential book in the field of jurisprudence in the second half of the twentieth century. Hart’s project was to produce ‘a theory of what law is which is both general and descriptive’ (Hart 1994, p. 239). His theory was ‘general’ in the sense that he intended to clarify the nature of law as a social phenomenon found in many different cultures and societies, by way of contrast to a ‘particular’ jurisprudence, which is focused on a specific legal system. His text was ‘descriptive’ in the sense that he eschewed evaluative analysis, limiting himself to describing practices and clarifying concepts related to law. He characterized his standpoint as that of an external observer describing the ways participants engage in and understand law from an internal point of view. To emphasize his empirical orientation, Hart described his book as ‘an essay in descriptive sociology’ (Hart 1961, p. v).

According to Hart, a legal system consists of the union of what he called primary and secondary rules. Primary rules are the rules that govern relations within society. Secondary rules are the rules legal officials follow to identify, apply, and change the primary rules. Hart famously labeled the core secondary rules the ‘rules of recognition,’ ‘which specify some feature or features possession of which by a suggested rule is taken as conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’ (Hart 1961, p. 92). According to Hart, the emergence of secondary rules is what separates prelegal (or primitive) societies from societies with law. Although simple societies with only primary rules can exist, they are static and inefficient in responding to new situations or bringing about desired change. The availability of secondary rules cures these defects.

Thus, secondary rules identify the primary rules; the question that remains is how to identify the secondary rules. Hart’s answer to this—in contrast to Kelsen’s abstract identification of the ultimate Grundnorm as the source of all other norms—is that the rules of recognition can be identified by observing the actual social practices of the legal officials when they identify law. The existence and nature of the rules of recognition in a given legal system is thus ‘a matter of fact.’ Based upon this resort to existing social practices, theorists have labeled Hart’s approach to law as ‘conventionalist.’ Law is whatever the legal officials indicate by their social behavior they recognize as law, with no content restrictions on what that might be. Hart added one further requirement to the secondary rules. He was concerned to distinguish law from mere habits of obedience, and from the ‘Gunman Writ Law,’ which was the impression left by Austin’s command theory of law. Hart felt that Austin’s coercive view of law failed to recognize that law contains a normative aspect. This normative aspect, according to Hart, can be recognized only if one takes into consideration the internal point of view of legal officials. From this perspective, it is evident that legal officials accept the secondary rules as ‘common standards of official behavior and appraise critically their own and each other’s deviations as lapses’ (Hart 1961, p. 113). Consistent with his nonevaluative stance, Hart specifies the necessity for the officials’ acceptance of the secondary rules without suggesting whether this acceptance is merited (which can only be determined by examining particular legal regimes).

Hart concluded that there are two minimum conditions necessary and sufficient for the existence of a legal system. The first condition is that the primary rules must be generally obeyed by the populace, though it is not essential that the populace normatively accept the primary rules. It does not appear to make much sense to say that a legal system exists if the bulk of the populace generally disregards it. The second condition is that the legal officials accept the secondary rules as critical standards for their behavior. Whenever these two conditions obtain, a legal system will exist. With its simplicity, clarity, elegance, and scope, Hart’s reconstruction revitalized legal positivism, and spawned an enormous response, in support and against. As a consequence of his work, virtually all legal positivists (in the Hartian tradition) adhere to two core theses about the nature of law: the Separation Thesis and the Social Sources Thesis. The Separation Thesis holds that there is no necessary relation between law and morality (Coleman 1982, Coleman 1996). The genesis of this thesis has already been identified in the earlier described insistence of legal positivists that the fact of legality alone does not carry with it the imprimatur of moral rectitude. It is important to recognize that this is a limited, negative thesis, a denial of the natural law position, rather than an affirmative statement of the relationship between law and morality. Legal positivists are not insisting that there are no connections between law and morality, only that there is no necessary connection. They recognize that the ‘law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals.’ (Hart 1961, p. 199). This influence comes in a myriad of ways. Law and legal norms often reflect (or claim to reflect) the morality of its community. Legal norms often expressly refer to and incorporate moral principles like justice, fairness, reasonableness, and due process. Law often has positive moral consequences, especially in its role in maintaining order in society. Law also often helps perpetuate moral norms, and participates in the moral education of members of the community, when it adds a legal sanction to support moral norms that have been recognized by law. Recognition of these intimate connections between law and morality is consistent with the Separation Thesis. The key qualifier in the above list is often. The Separation Thesis insists only that it is not necessarily the case that a moral norm, by virtue of that fact, automatically becomes a legal norm, and that it is not necessarily the case that an immoral law is, by virtue of that fact, not valid law, although both possibilities may be the case in a given legal system if the positive law of that system so determines.

The Social Sources Thesis holds that what is or isn’t valid law in a given system, as determined by the rules of recognition, is a social fact. By observing the practices of the legal officials within a legal system, it will be possible to identify the criteria applied by the legal officials to determine what is valid law. These practices often include, for example, treating legislative enactments and judicial precedents as valid sources of law.

Although these two theses are shared by legal positivists, the broad consensus in support of them conceals a substantial internal divergence among legal positivists about what these theses represent and allow or disallow. Much of the internal disagreement has been generated by attempts by Hart and other legal positivists to respond to the sustained critique of legal positivism by Dworkin. This complex internal and external debate cannot be recounted here, though its core themes can be articulated summarily.

Dworkin has attacked Hart at several different levels and points (Dworkin 1977, Dworkin 1985, Dworkin 1986). He denies the very possibility or value of general, external, purely descriptive jurisprudence. Dworkin insists that jurisprudence itself is an aspect or extension of the law of a particular legal system and must, therefore, be conducted from the particular, internal perspective, which is inherently evaluative in orientation. Against the substance of Hart’s argument, Dworkin denies the Separation Thesis by arguing that law and morality are inextricably intertwined, with moral principles providing the unseverable backdrop for the interpretation and application of legal rules. Based upon this view of the intimate connection between morality and law, Dworkin also denies Hart’s assertion that there are points at which the law runs out. According to Dworkin, law incorporates a large body of moral norms and principles, and, understood as such, law always provides, a single correct answer to legal problems. Dworkin further argues that the social practice aspect of Hart’s rules of recognition fails to accurately describe our own legal system, which expressly incorporates moral norms (like due process and fairness) in a manner that renders the identification of the primary rules dependent upon difficult and controversial questions about the truth of moral norms. He identifies two specific problems with Hart’s notion of rules of recognition. First, rules of recognition are incapable of identifying all of the many and varied moral norms and principles incorporated into the law. Second, Dworkin insists that legal positivists cannot, consistent with their theory of law, allow the incorporation of such norms and principles because the uncertainty which would result—making the identification of law contingent upon the resolution of complex moral questions—defeats legal positivists’ claim that the value of secondary rules is their ability to identify primary rules in a way that provides guidance to the populace.

This abbreviated recitation is a partial selection of Dworkin’s criticisms of Hart and legal positivism, focusing on the themes described earlier, and inevitably does not do justice to his arguments. A number of the issues separating Hart and Dworkin can be resolved by the acknowledgment on both sides that general (Hart) and particular (Dworkin) jurisprudence are two different enterprises which need not necessarily conflict. The most significant remaining controversy relates to the extent to which the rules of recognition can refer to open-ended moral questions that turn the issue of what law is on questions of content (rather than just social practices). Hart insists that there are no restrictions on the rules of recognition that would prohibit a particular legal system from turning the identification of law on the resolution of moral questions, as long as that is what the actual social practice constituted by the applicable rules of recognition requires. Hart labels his view ‘soft positivism’ (Hart 1994, pp. 250–4, Coleman 1998). With regard to whether this defeats the point of legal positivism, Hart (1994, p. 251) responds that positivism tolerates a certain degree of uncertainty in the identification of the primary rules, and furthermore that the resort to moral standards would not necessarily result in an excessive amount of uncertainty.

In theory, soft positivism would still be a correct description of a legal system that has only a single rule of recognition which says: do justice (Coleman 1998). Once this ‘inclusive’ view of legal positivism is taken, it is no longer evident that, as with the debate between natural law and legal positivism, anything of great moment rests upon the resolution of the debate over legal positivism between Hart and Dworkin. However, contrary to Hart, there are ‘hard’ or ‘exclusive’ legal positivists, led by Raz, who do not concede Dworkin’s position about the inclusion of open questions of morality within law (Raz 1979). Now much of the debate is an internal one between hard and soft legal positivists (Bix 1999, Leiter 1998, Coleman 1998). Although hard positivists recognize that the law often refers to such norms, they assert that at that moment the law runs out and the judge’s decision is based on extralegal considerations. The moral considerations to be resolved are not a part of the pre-existing law before the issue is decided, though they can thereafter become law if recognized and treated as legal precedent (consistent with the applicable rules of recognition). Hard positivists believe it is essential to take this position if legal positivism is to satisfy its claims that the function of law is to provide guidance to the public on the rules of conduct, and if law is to claim independent authority, apart from morality.

Once again, it would appear that the issue that divides the disputants is a relatively narrow one. Neither side denies that often the law refers to moral norms (like justice and fairness) which turn on the resolution of issues of substance or content. At that point the soft legal positivist says the judge is still doing law, while the hard legal positivist says that the law has run out. This is not to suggest that the debate is insignificant. When considering these issues, legal philosophers are attempting to come to an understanding of the nature of law. It is important to recognize that, as with several of the debates discussed above, the resolution will not be found in resort to the facts, since there is not substantial disagreement about the facts, but rather over how these facts are to be described from a theoretical standpoint. Despite the avowedly nonnormative stance of legal positivists, it would appear that the resolution of many of these debates is contingent on the outcome of evaluative questions, like which concept of law and its relation to morality is not just descriptively accurate but also morally optimal.

3. Legal Positivism And Social Science

Legal positivism generally, and Hart’s theory in particular, has an ambivalent relationship with the social sciences. Even what might seem like an obvious connection—use of the label ‘positivism’—is not free of ambiguity. The term positivism literally refers to the fact that law is ‘posited,’ a human social creation. Some legal theorists assert that there is no direct connection between legal positivism and scientific positivism (Patterson 1953, p. 15, Posner 1990, p. 20); others suggest that the connection is a general one which lies in the shared insistence on the is ought distinction (Schauer 1996, p. 49). Still others insist that there is a strong connection, grounded in a shared empiricist narrowing of reality, need for certainty (Rommen 1998, pp. 109–13), and a shared opposition to theological and metaphysical modes of thought (Lee 1989, pp. 16–18). Hart himself invoked connections to social science. As noted earlier, he described his book as an essay in descriptive sociology, though this claim did not endear him to social scientists. Furthermore, in his discussion of the internal aspect of rules, Hart acknowledged Winch’s The Idea of a Social Science (1958), and he has been lauded for importing the hermeneutic perspective from social science into jurisprudence.

These connections aside, Hart’s theory has been criticized by many social scientists who study law. A standard social scientific criticism is that Hart made a host of putatively descriptive sociological claims without having first done the requisite sociological investigation (Cotterrell 1989, pp. 94–106). An anthropological critique of Hart focuses on the fact that his concept of law was abstracted from state legal systems, which consequently leads to the conclusion that certain societies—those lacking in secondary rules— did not have law, suggesting that they are primitive or less civilized (Roberts 1979, pp. 23–5). This smacks of ethnocentric privileging of Western legal systems. Social scientists who hold the belief that ‘no society is without law’ (Moore 1978, p. 215) must reject Hart’s concept of law. A third common criticism, though one aimed at legal positivism more generally, is that legal positivist views of law tend to have the effect of masking the social reality that there are a plurality of ‘legal’ systems operative in society, not just the state legal system that legal positivism emphasizes (Griffiths 1986).

Despite these criticisms, Hart’s concept of law has had a significant, if mostly underground, influence in social scientific approaches to the concept of law. Bohannan’s widely followed anthropological definition of law as the reinstitutionalization of norms bears a strong resemblance to Hart’s notion of primary and secondary rules (Bohannan 1965). Galanter, one of the leading theorists of legal pluralism, adopts Hart’s concept of law to distinguish legal from non- legal forms of social regulation (Galanter 1981, pp. 18–19, n. 26). Hart’s concept of law is attractive because it comports with our intuitions about law; it comports with our intuitions because, in the modern world, it is the form of law with which we are most familiar. Since law is a social institution, it is inevitable that, whichever concept of law one formulates, it will be derived from a preconception about the nature of law (Tamanaha 1993, 1995).

Legal positivism, especially Hart’s version of it, regardless of its limitations, holds a great deal of promise for the social scientific study of law, though that promise has yet to be fully realized. The legal positivist ambition to construct a general and descriptive approach to law is one the social sciences should embrace. Social scientists can conduct the sociological studies Hart failed to complete, using his model of law as the union of primary and secondary rules to guide their research, without necessarily accepting the separate propositions that this is the best or only way to characterize and understand law. Hart’s primary mistake from the standpoint of a descriptive sociology came when he built normative acceptance by legal officials into his concept of law. Whether or not legal officials accept the secondary rules is an open question that can only be resolved following investigation (Tamanaha 1997, pp. 131–7). With these and other adjustments, a social scientific effort to continue and extend Hart’s project could apply his conventionalist approach to identify, abstract from, and describe other forms of law operative in society. This sociological or ‘sociolegal’ version of positivism has the potential to provide information about the relationship between law and society and to establish a bridge between jurisprudence and the social scientific study of law (Tamanaha 2001).

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