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Development and Influence Legal Positivism

Legal positivism has a long history and broad influence dating back to ancient times. It was most fully developed by Jeremy Bentham and John Austin in the 19th century. By the mid-20th century, their view that law is the command of a sovereign backed by force lost influence. Contemporary legal positivism is shaped by H.L.A. Hart, Joseph Raz, and Hans Kelsen. Legal positivism also influenced many social theorists and remains important today, though some reject the label.

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29 views

Development and Influence Legal Positivism

Legal positivism has a long history and broad influence dating back to ancient times. It was most fully developed by Jeremy Bentham and John Austin in the 19th century. By the mid-20th century, their view that law is the command of a sovereign backed by force lost influence. Contemporary legal positivism is shaped by H.L.A. Hart, Joseph Raz, and Hans Kelsen. Legal positivism also influenced many social theorists and remains important today, though some reject the label.

Uploaded by

Tegar Ishmat
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Legal positivism has a long history and a broad influence.

It has antecedents in ancient


political philosophy and is discussed, and the term itself introduced, in mediaeval legal and
political thought (see Finnis 1996). The modern doctrine, however, owes little to these
forbears. Its most important roots lie in the political philosophies of Hobbes and Hume, and
its first full elaboration is due to Jeremy Bentham (1748–1832) whose account Austin
adopted, modified, and popularized. For much of the next century an amalgam of their views,
according to which law is the command of a sovereign backed by force, dominated English
philosophical reflection about law. By the mid-twentieth century, however, this account had
lost its influence among working legal philosophers. Its emphasis on legislative institutions
was replaced by a focus on law-applying institutions such as courts, and its insistence of the
role of coercive force gave way to theories emphasizing the systematic and normative
character of law. The most important architects of contemporary legal positivism are the
Austrian jurist Hans Kelsen (1881–1973) and the two dominating figures in the analytic
philosophy of law, H.L.A. Hart (1907–92) and Joseph Raz, among whom there are clear lines
of influence, but also important contrasts. Legal positivism’s importance, however, is not
confined to the philosophy of law. It can be seen throughout social theory, particularly in the
works of Marx, Weber, and Durkheim, and also among many lawyers, including the
American “legal realists” and most contemporary feminist scholars. Although they disagree
on many other points, these writers all acknowledge that law is essentially a matter of social
fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and
therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers
often use “positivist” abusively, to condemn a formalistic doctrine according to which law is
always clear and, however pointless or wrong, is to be rigorously applied by officials and
obeyed by subjects. It is doubtful that anyone ever held this view, but it is in any case false
and has nothing to do with legal positivism. Among the philosophically literate another, more
intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated
with the homonymic but independent doctrines of logical positivism (the meaning of a
sentence is its mode of verification) or sociological positivism (social phenomena can be
studied only through the methods of natural science). While there are historical connections
and commonalities of temper among these ideas, they are essentially different. The view that
the existence and content of law depends ultimately on social facts does not rest on a
particular semantic thesis, and it is compatible with a range of theories about how one
investigates the social world, including non-naturalistic accounts. To say that the existence of
law depends on facts and not on its merits is a thesis about the relation among laws, facts,
and merits, and not otherwise a thesis about the individual relata. Hence, many traditional
“natural law” moral doctrines—including the belief in a universal, objective morality
grounded in human nature—do not contradict legal positivism. The only influential positivist
moral theories are the views that moral norms are valid only if they have a source in divine
commands or in social conventions. Such theists and relativists apply to morality the
constraints that legal positivists think hold for law.

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