Legal positivism

Legal positivism is the approach in the philosophy of law which treats ‘positive law’ – law laid down in human societies through human decisions – as a distinct phenomenon, susceptible of analysis and description independently of morality, divine law or mere natural reality. It shares with philosophical positivism the aim of dealing in facts, but these are facts about legality and legal systems. Insistence on the distinctness of positive law has been integral to the ‘rule of law ideal’ because of the aim of clear law applied by neutral legal officials. However, debates about positivism have been marred by a degree of conceptual confusion: positivism often appears to mean something different to its supporters and to its enemies, and many attacks are launched against straw men. Consequently, much depends on the definition of legal positivism that is used.

Attempts have been made to put some order into the discussion. Consider, for instance, H.L.A. Hart’s list of meanings of legal positivism (which cumulatively count as features of positivism): (1) law as human commands; (2) absence of any necessary connection between law and morals; (3) the study of law as meaning, as distinct from sociology, history and evaluation; (4) the contention that a legal system is a closed system, sufficient in itself to justify legal decisions; (5) non-cognitivism in ethics (Hart 1958). Norberto Bobbio’s list is shorter and more orderly, but at first sight not too different (Bobbio 1960): legal positivism has been conceived as: (1) a neutral, scientific approach to law; (2) a set of theories depicting the law as the product of the modern state, claiming that the law is a set of positive rules of human origin, and ultimately amounting to a set of statutes, collected in legal systems or orders; (3) an ideology of law that gives a value to positive law as such, implying that it should always be obeyed. However, in this list, unlike Hart’s, the ‘meanings’ cannot be added together, the first and last being incompatible. The connection between the three points is as follows: for positivists the theories of Bobbio’s second point (law is made up of rules produced by the state) yield a scientific and value-free approach to law; for the adversaries of legal positivism they yield only ideology, that is hidden value judgments in favour of the power of the State.

The shortest way to understand what is at issue in these abstract discussions is to proceed by contrasting legal positivism with its main critics’ approach to law. It is noteworthy that on this point legal realists and natural law theorists, although starting from different and even opposite points of view, agree in concluding that legal positivism is an ideological, covertly evaluative, thesis.