Version: v1, Published online: 1998
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1. Positivism versus natural law theory
One of the basic ideas of legal positivism is the separation of law and morals: according to positivism defining what the law is should be kept separate from deciding whether it is just or unjust, good or evil. This is the basic conflict with the iusnaturalists (natural law theorists) who argue that describing the law necessarily requires moral value judgments and choices (see Natural law §§1, 4). Yet, positivism’s other main opponents, legal realists, who accept the positivistic aim of a value-free description of law, none the less argue that the positivistic ‘formalist’ approach is itself contaminated by hidden unrecognized value choices, and therefore that legal naturalism and positivism are really the same. Natural law theorists, taking positivists at their word with a vengeance, often group all their adversaries, including realists, together under the common label of positivism (meaning a value-free approach to describing the law), the lack of what they believe to be a proper understanding of the vital role played by morality in the life of law (Weinreb 1978; Fuller 1958).
Therefore, a little time spent on conceptual clarification will not be wasted. Glanville Williams proffers the most radical answer to this kind of conceptual question about competing definitions: ‘Everyone is entitled for his own part to use words in any meaning he pleases: there is no such thing as an intrinsically “proper” or “improper” meaning of a word’ (Williams  1956: 134–6). However, while Williams’ thesis is a good antidote to philosophical verbosity, it is a little too simplistic. Not all conceptual discussions can be solved merely by arbitrary definition. In fact, concepts are fragments of theories; when we examine the concept of law in legal positivism, we are looking not just for the meaning of a word but also for a theory which will offer the best approach to legal problems and eventually to the final practical problem of obedience.
So, what is at issue in positing that the ‘is’ of law can be identified separately from any ‘ought’? It means that nearly all positivists replace the moral commitment to justice (however this is defined), which is at the basis of the iusnaturalistic account of the law, with the aim of a value-free description of effective legal systems (however this is gauged). In other words, effectiveness thus replaces justice in the positivistic conception of law (Hart 1961; Kelsen 1945). Critics of positivism may be forgiven for thinking this to be a rather perverse attitude, making it all too easy for positivistic lawyers to neglect their (moral) duty to take a moral stance towards law. This is sometimes called the ‘reductio ad Hitlerum’ of positivism, which is accused of preaching acquiescence to every (effective) law, even when it is as morally evil as Nazi law. This charge is, in turn, firmly rejected by positivists, who observe that something can only be rationally judged and valued if we first know what it is. This is precisely Bentham’s basic distinction (see Bentham, J.), which is at the origins of legal positivism, between censorial and expository jurisprudence (Bentham 1977). Many positivists will also add that we gain nothing but confusion in insisting, as natural law theorists do, that unjust laws are not really laws (lex iniusta non est lex).
However, natural law theory is saying more than that; otherwise its more dismissive critics would be right in saying that naturalists are merely engaged in a vain battle of words. Iusnaturalists maintain that the law cannot be individuated, described, interpreted or applied unless we continuously make use of moral values and moral choices (Finnis 1973): a normative element is part of the basic choices in the very description of the law. Hence, some naturalists would argue that this should also be a defensible ethical choice, rather than the morally inadequate positivistic standard of effectiveness. In any case, the positivistic attitude, so its critics would argue, leads not to empirical science but, rather, to the moral choice of conformism, an attitude to which lawyers are all too easily prone and which should not be encouraged further.
The positivist might reply that this kind of conformism is indeed an essential part of the rule of law, the ideal embodied in many contemporary legal and political institutions, that power be conferred, controlled and exercised through general rules only (Scarpelli 1965; Fuller 1958). This ideal is a component of all the basic institutions of contemporary Western states, where a legislative body is supposed to make general laws (statutes), while different bodies (the judiciary, the administration) apply them, within the limits of powers granted to them by other legal rules (rules of competence, procedural rules) (see Fuller, L.L.). It is obvious that this ideal is based on, at least, judicial compliance to law and, more widely, obedience of the subjects who fall under law or seek to use it. It is equally obvious that only in so far as it is possible to have an objective knowledge of the meaning of such laws does the whole enterprise make sense; only then will law’s reality match the appearances. Legal positivism purports to provide a model of such an objective knowledge, of a legal science conceived as the study of whatever rules come from the appropriate sources and authorities. The next question then must be, what exactly is a (legal) rule?
Jori, Mario. Positivism versus natural law theory. Legal positivism, 1998, doi:10.4324/9780415249126-T008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1/sections/positivism-versus-natural-law-theory.
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