The K-Zone: legal positivism

Legal positivism is the principle that law is something that is `posited', that is, stated. It is not derived from some higher guiding principle, but developed by people for their mutual benefit. Legal positivism was first articulated by 19th century political philosophers such as Jeremy Bentham, and has been developed more recently by HLA Hart, among others. Legal positivism was influenced by the general rise of Positivism in the 19th century, and sought to reveal points of self-evidence and clarity in the rather murky legal theories of the day. Early legal positivists declared themselves opposed to the ideas of NaturalLaw, partly for logical reasons, but also because they felt that natural law was being used to support and justify the English legal system, which was badly in need of reform. Bentham argued that not only was the English legal system not founded on natural law principles, but there was no reason why it should be. Since Bentham's day, legal positivism has experienced mixed fortunes, and it is probably no longer possible to say that legal positivism is one single, well-defined philosophy.

Legal positivism fell out of favour in the mid-20th century, partly as a result of a fundamental misuderstanding of its core tenets. As Hart points out, because legal positivism seeks to distinguish between law and ethics, and as it claims that one can be analyzed without regard to the other, it is easy to get the impression that legal positivism seeks a law that is not founded on ethics. The Nazi regime for example, had a well-developed system of law; its problem was that it had no ethical foundation. The identification (or, as Hart would have it, misidentification) of logical positivism with totalitarianism and oppression dealt it a stunning blow. However, legal positivists never argued for a law without ethical underpinnings; their assertion was that law was not identical to ethics, or derived from ethics. Instead, an ethical positivist law would be promulgated as a purely human endeavour, guided by such ethical principles as society valued.

Although in some senses the objectives of natural law thinkers and positivists can be seem to be similar, for most jurists there remains a central point of incompatibility. Most people with natural law tendencies believe that law must be validated by reference to some higher principle - morality, God, nature, or whatever, while most positivists repudiate this notion.

JurisprudenceAndLegalTheory