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Home > Law > Law glossary > Law glossary
legal positivism
Last modified: Thu Feb 23 16:37:37 2006
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.
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