Legal Positivism

1
Legal Positivism

• Two Central Theses
• Broad and Narrow Positivism
• Soft and Hard Positivism
• What is Positive Law?
• The Command Theory
• The Social Convention Theory

2
Two Central Theses

• Issues of legal validity must be strictly
  separated from questions of morality. What the
  law ought to be has nothing to do with what the
  law actually is.
• There are irreducible facts about political
  society that can only be expressed in the
  vocabulary of the law. The study of the law is
  autonomous.

3
Broad and narrow positivism

• Broad positivism ( moral/legal conventionalism).
  There is only the positive law there are no
  objective, universal facts about morality, about
  what the law ought to be like. Hans Kelsen
• Narrow (legal) positivism in addition to the
  positive law, objective moral facts may exist.
  Legal validity is independent of moral
  justifiability.

4
Two kinds of (narrow) legal positivism

• Utilitarian positivism there are no natural
  human rights, nothing like a natural law. The
  only moral standard is one of the desirability of
  the consequences of the law. Bentham
• Non-utilitarian narrow positivism. There is
  something like natural law (universal human
  rights, universal moral principles).

5
Common ground

• A positive law is binding even if it is supremely
  immoral.
• No principle of morality is legally binding until
  it has been enacted into positive law.
• That a statute is legally binding does not settle
  the moral question of whether we ought (morally
  speaking) to obey or disobey the law.

6
Soft vs. Hard Positivism

• Soft positivism there is no necessary connection
  between the content of law and the truths of
  morality.
• Hard positivism there is, of necessity, no
  connection between the content of law and the
  truths of morality.

7
Soft Positivism

• Defended by H. L. A. Hart.
• Society may, if it chooses, incorporate the
  principles of morality into the law. E.g.,
  prohibitions of cruel punishment, requiring
  just compensation.
• However, this is merely an option no moral
  principle is legally binding unless it is
  incorporated into the law.

8
Hard Positivism

• Defended by Joseph Raz (Oxford).
• It is impossible for the law to incorporate moral
  ideas or principles.
• Apparent cases of this are merely decorative,
  without legal force.
• Why? The purpose of the law is to enable society
  to avoid and resolve disputes. Applications of
  moral truths are always disputable.

9
What is positive law?

• The Command Theory (Bentham, Austin)
• The Social Convention Theory (Kelsen, Hart)

10
Bentham/Austin Command Theory

• X is the superior of Y if and only if Y is in the
  habit of obeying X, and not vice versa.

11
The Sovereign

• A collection S of human beings constitutes an
  independent political society just in case there
  is one member X (or some compact body X of
  members) of S that is the superior of all of the
  other members of S, and there is no human being Y
  outside of S who is the superior of X. In such a
  case, X is called the sovereign of society S.

12
Commands

• A command from X to Y is the expression, in words
  or actions, of the desire of X that Y act in a
  certain way, backed up by a stated or implied
  threat to impose some penalty on Y if Y does not
  comply.

13
General Commands

• A general command is a command that is issued to
  an entire class of individuals and that is
  intended to stand for an indefinite period, until
  revoked by its issuer.

14
Positive Law

• A positive law is a general command issued by the
  sovereign of an independent political society to
  some or all the members of that society.

15
Some problems with the command theory.

• The theory applies clearly to an absolute
  monarchy, but is much less clear when applied to
  a society where some group is the sovereign.
• What exactly does it mean to obey a group?
• Can a group issue commands (in Austin's sense) --
  can a group share a single desire?

16
More problems

• H. L. A. Hart argues that the command theory
  cannot distinguish between a legitimate
  government and an armed robber ("give me your
  money or else"). The "Gun Man" objection.
• Parliamentary or constitutional law, laws
  governing the actions of the sovereign, do not
  count as law at all.