Version: v1, Published online: 2001
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1. Legal positivism and natural law theory
Among philosophy’s long-standing traditions is the classic debate between two jurisprudential schools: natural law theory and legal positivism. In its traditional form, natural law theory asserts that human law is an attempt to express a universal moral law, decreed by God and discernible via human reason (see Natural law). Valid human laws are all in various ways derived from the natural law; and those which are not so derived are deemed ‘corruptions of law’ (Aquinas, Question 95, Article 2) or ‘acts of violence’ (Aquinas, Question 96, Article 4). So law and morality are, for proponents of traditional natural law theory, deeply and necessarily connected with one another; and the notion of an evil, but valid, human law is as incoherent as that of a square circle.
In its traditional form, legal positivism asserts that human law is essentially a social institution the existence and content of which is, fundamentally, a matter not of God’s law but of human will and power. According to the English legal theorist John Austin, any civil law is the command of a human sovereign. Law exists, that is, when someone who alone enjoys the habitual obedience of the bulk of a population has expressed the will that others act or forebear from acting in prescribed ways, and has coupled these expressions of will with the threat of sanctions should their wishes be unfulfilled. Modern positivists uniformly reject Austin’s command theory, substituting for the commands of the sovereign a set of norms (e.g., rules, principles and variable standards) whose legal validity depends on fundamental conventions or social rules. Nevertheless, though the emphasis is now on convention rather than on command, every modern positivist views law as a matter of human creation; its existence and content are, fundamentally, matters of social fact. This basic commitment, shared by all proponents of legal positivism, is usually termed ‘the social thesis’ (Raz 1979).
A second thesis integral to the positivist tradition is Austin’s famous ‘separation thesis’, that ‘the existence of law is one thing, its merit or demerit another …‘ (Austin 1832, Lecture 5). Any connections there might be between law and morality are contingent only. There is nothing in the nature of law – as a social institution grounded in the will of a sovereign or in fundamental social conventions – that guarantees its moral worth. It is therefore possible to have profoundly immoral laws and wicked legal regimes. Aquinas’s ‘acts of violence’ may yet be valid law on the positivist model.
Despite a shared commitment to the social and separation theses, defenders of legal positivism differ significantly in their understanding of these fundamental tenets. We have already noted the split between Austin and his positivist descendants on the tenability of the command theory as a proper account of the social thesis. Since H.L.A. Hart’s devastating critique of Austin, most positivists assert that the true test of legal validity lies not in the will of a sovereign but in something like Hart’s ‘rule of recognition’, the fundamental social rule whose criteria determine the laws valid within a particular legal system (Hart 1961) (see Hart, H.L.A.). The connection between Hart’s rule of recognition and the social thesis is evident in the former’s conventional nature: its existence and content are matters of pure social fact – matters of the criteria that are in fact accepted by legal officials in their practice of establishing legal validity. The connection with the separation thesis is likewise evident. There is nothing in the bare notion of a social rule of recognition that guarantees the moral worthiness of the laws it validates. More important, there is nothing which requires that moral worthiness be included as a condition of legal validity. The accepted criteria can be as simple and morally neutral as ‘Whatever the Queen in Parliament enacts is law’, or ‘Supreme Court rulings constitute valid law’.
Waluchow, Wilfrid. Legal positivism and natural law theory. Legal positivism, inclusive versus exclusive, 2001, doi:10.4324/9780415249126-T064-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1/sections/legal-positivism-and-natural-law-theory.
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