Version: v1, Published online: 1998
Retrieved April 22, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1
2. Varieties of legal positivism
All positivists think that the law is a set of legal rules, or norms, a belief that is strictly connected to the fundamental value of the rule of law (see §1). Law is conceived as a device for transferring authority and (political) legitimacy by means of rules; legal rules connect individual choices, such as judicial sentencing, to general decisions such as legislation. But, what is a rule? The main versions of legal positivism can be distinguished by their different accounts of what a legal rule is.
The most immediate and common answer is that a (legal) rule is a command. This thesis is typical of early positivism, as represented by the theories of John Austin (Austin 1832). The second answer is that (legal) rules are judgments as in Kelsen’s mature legal positivism (see Kelsen, H.). According to Kelsen, legal rules or norms are conditional, hypothetical judgments of the form: if you committed such and such action, then you (legally) ought to be punished (Kelsen 1945). This idea also avoids the main objection to the older (‘naïve’) positivism of Austin’s kind: that law cannot be reduced entirely to commands, which exist only as part of a direct relation between real persons (see Austin, J.).
The Kelsenian version of legal positivism sees a legal rule as a conditional ought-judgment. However, this renders problematic positivism’s claims to legal empiricism. The ‘existence’ of the sentence/proposition ‘if you kill you ought to be punished’ is totally unaffected both by the fact that a killing has happened and by the fact that the killer is actually punished. This loose connection with facts is a frailty of Kelsen’s brand of positivism. The norms or rules in the Kelsenian sense need to be somehow anchored to social facts, so that the Kelsenian positivist may be enabled to distinguish imaginary or ideal law from real positive law. As we shall see below (§4), Kelsen and all modern positivists attempt to solve this problem with the theory of the existence of a legal system.
The later, ‘analytical’, versions of legal positivism, while preserving Kelsen’s idea that the law is of an impersonal and conditional character, try to translate the whole into more empirical terms. Law is seen as a social phenomenon, essentially as meaning and language. These versions of legal positivism claim that a neutral description of the law, which is vital to the ideal of the rule of law, can be attained by treating the law as a language; in fact this later positivism is usually influenced by some form of linguistic philosophy. Typically, Kelsen’s ‘pure theory of law’ is set on these new philosophical foundations; but the rest of the building is left substantially unchanged, and especially so his theory of a legal system. Legal rules and legal systems are now conceived mainly as (sets of) sentences and meanings, which can be neutrally described without having to be accepted or followed. Their empirical existence is thought to be guaranteed by their being an actually spoken language, something provided, therefore, with a social dimension.
However, there is a significant divide between the Continental and the Anglo-Saxon versions of this linguistic positivism. On the Continent, Bobbio (Bobbio 1950) claimed that jurisprudence should follow the ‘modern philosophy of science’ (meaning the neopositivistic version) and translate the language of the law, especially the language of statutes and codes, into a rigorous and coherent and complete language (see Bobbio, N.). By contrast, some years later in England, H.L.A. Hart used the analytical tools of ordinary language philosophy which roots language ‘rules’ in social use. He claimed that legal rules are essentially an abstraction from effective social practices, characterized by a fundamental linguistic element and certain normative uses of language (the ‘internal discourses’) (Hart 1961).
Bobbio’s theory and Continental positivism was also perhaps influenced by a tradition of statutory law (law as command from above). Its major difficulty was, accordingly, to distinguish between positive law elaborated and made rigorous by the efforts of linguistic jurisprudence, and rigorous but non-positive law (which would have meant falling into the arms of legal naturalism). For this task, subsequent Continental positivism has relied heavily on Kelsen’s theory of the basic norm, which is conceived as the linchpin connecting the whole of a legal system, a huge body of words, to social effectiveness and reality. Hart’s positivism is rooted in reality through its concept of rule as social practice, and its version of the basic norm theory has a much less daunting job to do: simply to recognize when rules are part of a legal system, rather than being the sole warranty of their existence.
Jori, Mario. Varieties of legal positivism. 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/varieties-of-legal-positivism.
Copyright © 1998-2021 Routledge.