Legal positivism
Many branches of legal positivism and philosophers don't agree on all topics
Shared characteristics:
1) Law is the creation of human agents
2) Law is a social fact
3) A descriptive approach to law
4) The separation of law and morality
5) Valid law is solely determined by a set of formal criteria
6) Law is an autonomous system of norms
Law is the creation of human agents
Law is not made by god or discovered by reason but made by competent human authority
- Recognise customary law through history
- Argue that customary law is not actually law until recognised and enforced by competent
human authority
Law is a social fact
- Law is social and artificial rather than natural
- Rules are defined by the legislative branch and enforced and applied by the judiciary
and executive
A descriptive approach to law
- Identification of valid law in each case and correct legal sources
- Building an effective legal argument requires knowing the relevant and correct legal
sources
- The law as it is found in the sources of law can be distinguished from ideas of what the
law ought to be
- Descriptive rather than prescriptive: only seek to analyse its character, structure and
sources
- Better idea of rights and duties
- Progressive thinkers: advocates for social reforms-> but you must know what the law
actually is before assessing the merits of the law and considering change
The separation of law and morality
- Argument that there is no necessary connection between law and morality
- The law is the law even if it is seen as unjust or immoral, is law nevertheless
- Judges may use moral reasoning in their decision-making, by recognising moral norms
in the law
- Moral norms are only relevant in the law if a competent legal authority establishes so
Valid law is solely determined by a set of formal criteria
- The law itself contains the formal criteria
First-order norms: rules
,Second-order norms: rules about rules-> how first-order norms are produced, enacted and
changed, and what legal authorities can do so
- Legal systems contain legal norms that are formal criteria
- Allows for recognition of whether a norm is a law or a social/moral norm
Law is an autonomous system of norms
- All rules belong to the same system that provides the formal criteria
- Rules that are correctly applied or changed by legal authorities
- Legal norms are hierarchically linked to each other: decisions to legislation to the
constitution
- Autonomous as it itself regulates its own creation: is not dependent on moral norms or
social acts
History of legal positivism:
Law is a human creation and social fact, created alongside absolute authority
Thomas Hobbes: the sovereign is the source of law, an artificial product by the
deliberation of human making, The state of nature has unlimited freedom with no
common law, and the sovereign establishes shared legal obligation by enforcing
sanctions. The sovereign itself is above the law
Jean Bodin: “The law is nothing else than the command of the sovereign of the exercise
of his sovereign power”, an early form of the command theory of law which is early legal
positivism
Jeremy Bentham: an early legal positivist and founder of utilitarianism: morality of acts
must be evaluated based on their consequences. Good acts have good consequences.
To avoid pain and seek pleasure for the greatest number of people, individuals must act
towards providing the greatest amount of happiness to the greatest number of people.
The argument is that taxation must be applied to the rich minority to increase happiness
and decrease the pain of the majority. The application of torture on a minority can even
exist if it saves the majority of people. This is best realised if the law is recognised as
positive law, strongly against liberalism. Law must be posited and thus positive, law is
produced from the clearly expressed will of the sovereign to realise good consequences
for the happiness of the majority. Supported the replacement of common law rules in
England with legislation applied by parliament
John Austin: a classic of the British command theory of law: argued that the law simply
and strictly is positive law, said by political superiors to political inferiors. The law is the
command of the political superior which the inferior must obey out of fear of
consequences and sanctions of disobedience. Here exists moral rules, customary law
and international law but they are only laws that are improper as they are not formed by
the sovereign. As the law is formed by the sovereign, it does not apply to the sovereign
and they are outside of the law. Positive law is based on the will of the sovereign.
Critiques of this theory: HLA Hart argued that Bentham and Austin’s ideas as they fear
the threat of sanctions miss a key quality of law, acting based on the right thing to do.
The law is binding as they are the right thing to do. Distinction between primary and
secondary rules. Hart argues that primary rules are commands and secondary rules do
, not create duties for individuals but rather create rules of application towards the primary
rules, and regulate how primary legal rules are recognised, changed and interpreted
(rules about rules). The systematic character of law led to the criticism of the sovereign
being outside of the law, as modern law regulates its creation, there is no legally
unlimited sovereign in England. The law empowers the government, parliament and the
monarch in the British system to act towards its function. The law is a self-regulating
autonomous system. Response to basic norm = internal point of view
Kelsen’s Pure Theory of Law: a non-reductive account of law and the autonomy of the
legal system. Careful consideration of the law being a social fact argues that law is not
strictly a social fact as it is normative rather than factual, this is based on legal obligation
and legitimate power. Norms depend on other norms, resulting in the law being
normative and having normative implications. (David Hume: is vs ought). Law cannot be
a social fact as it doesn’t result from sheer force, a legal norm can only be imputed and
derived from another legal norm. Facts are still important, but legal norms provide
schemes that allow for the interpretation of legal facts. The formal validity of the norm is
what counts and brings a rise of an obligation to an individual. Kelsen set against moral
and political explanations of the law where natural law aims to set law against moral
constraints and command theorists of law reduce law to the will of political authority. This
reduces law to something that is not legal. Law is set out based on its own terms. The
theory of law is the theory of interpreting facts based on legal norms to perceive
behaviour objectively. The law is, therefore, an autonomous system of norms that is to
be understood only on its own terms. The proper method for analysing legal norms must
be objective and should not follow subjective meanings and interpretations -> thus the
Pure Theory of Law is value-free and purified from subjective topics. the application of
law is a moment of juris-diction (the stating of the law) by officials of the legal system
authorised to do so
Subjective meaning: the way in which an individual or a group of individuals experiences or
understands an event or an act
Objective meaning: the meaning of an event or an act according to the law
The subjective meaning does not need to be the same as the objective meaning but it can
occasionally be
The separation thesis: law’s existence does not depend on its
moral correctness
The normativity thesis: legal norms cannot be based on mere
facts but only on other norms
Binding of norms: based on a hierarchy
Lower-level norms -> higher-level norms -> constitutional law->
historical first constitution
- Historical first constitution is the highest norm as there is no
previous constitution or based legal source, and has the
highest validity that individuals ought to obey
, - A valid legal norm can only derive from another valid legal norm: not any moral or
political obligation
- Modern positive law is an autonomous, hierarchical and historical system that depends
on us accepting to bind ourselves to it
Basic norm: attempt to solve the origin of the hierarchical legal system, the first historical
constitution
- Historical first law must be presupposed to be valid law
- Cannot be rationally founded, must be assumed to avoid breakdown from the hierarchy
of norms
- Law is a human creation, and thus a social fact AND legal norms derive validity from
only other legal norms
- Basic norm demands the interpretation of the first constitution to be legally valid and
binding
- It is therefore not a legal act, nor a matter of will: it is a matter of thought only – it has to
be presupposed and is a coercive order
- This requires collective action and respect towards following the basic norm
- Legal validity is not dependent on moral or political values as it relies on subjectivity->
legal norms must be objective
1) Effectivity: relies on collective action and obeying of individuals to have the law binding
on their actions, subjects should behave based on how the law prescribed. Effectiveness
is divided into two aspects: 1) that the law is applied by legal organs and 2) that
individuals obey these norms
2) Validity: requirement that legal norms correspond to formal criteria, validity REQUIRES
effectivity, without effectivity there is no validity present, even if it exists
Legal positivists sought to clarify our understanding of law – a description of what the law is – by
freeing it from value judgements about what it ought to be (no moral or political consideration)
Legal reasoning= assumed legal norm (built on by other legal norms) + relevant facts
Carl Schmitt:
Influential works during the Weimar period in Germany with his theory of sovereignty
Constitutional theory: applied his theory to the interpretation of the Weimar constitution
Sided with the Nazis after 1933, obtained an influential position in the legal profession in
socialism
Defended Hitler’s extrajudicial killings of political opponents and the killing of Jewish Germans
Theories behind his association with the Nazis: pursuing an advancement in his own career,
anti-liberal and anti-semitism allowed him to support the regime
Schmitt’s work focused on international law: foundations of international law
Detained as a potential defendant in the Nuremberg trials
Schmitt’s views on sovereignty and emergency powers are seen as the intellectual basis on
calls for a strong executive power which is unlimited by constraints of legality
Schmitt’s theory on popular sovereignty
Schmitt’s conception of international order
Many branches of legal positivism and philosophers don't agree on all topics
Shared characteristics:
1) Law is the creation of human agents
2) Law is a social fact
3) A descriptive approach to law
4) The separation of law and morality
5) Valid law is solely determined by a set of formal criteria
6) Law is an autonomous system of norms
Law is the creation of human agents
Law is not made by god or discovered by reason but made by competent human authority
- Recognise customary law through history
- Argue that customary law is not actually law until recognised and enforced by competent
human authority
Law is a social fact
- Law is social and artificial rather than natural
- Rules are defined by the legislative branch and enforced and applied by the judiciary
and executive
A descriptive approach to law
- Identification of valid law in each case and correct legal sources
- Building an effective legal argument requires knowing the relevant and correct legal
sources
- The law as it is found in the sources of law can be distinguished from ideas of what the
law ought to be
- Descriptive rather than prescriptive: only seek to analyse its character, structure and
sources
- Better idea of rights and duties
- Progressive thinkers: advocates for social reforms-> but you must know what the law
actually is before assessing the merits of the law and considering change
The separation of law and morality
- Argument that there is no necessary connection between law and morality
- The law is the law even if it is seen as unjust or immoral, is law nevertheless
- Judges may use moral reasoning in their decision-making, by recognising moral norms
in the law
- Moral norms are only relevant in the law if a competent legal authority establishes so
Valid law is solely determined by a set of formal criteria
- The law itself contains the formal criteria
First-order norms: rules
,Second-order norms: rules about rules-> how first-order norms are produced, enacted and
changed, and what legal authorities can do so
- Legal systems contain legal norms that are formal criteria
- Allows for recognition of whether a norm is a law or a social/moral norm
Law is an autonomous system of norms
- All rules belong to the same system that provides the formal criteria
- Rules that are correctly applied or changed by legal authorities
- Legal norms are hierarchically linked to each other: decisions to legislation to the
constitution
- Autonomous as it itself regulates its own creation: is not dependent on moral norms or
social acts
History of legal positivism:
Law is a human creation and social fact, created alongside absolute authority
Thomas Hobbes: the sovereign is the source of law, an artificial product by the
deliberation of human making, The state of nature has unlimited freedom with no
common law, and the sovereign establishes shared legal obligation by enforcing
sanctions. The sovereign itself is above the law
Jean Bodin: “The law is nothing else than the command of the sovereign of the exercise
of his sovereign power”, an early form of the command theory of law which is early legal
positivism
Jeremy Bentham: an early legal positivist and founder of utilitarianism: morality of acts
must be evaluated based on their consequences. Good acts have good consequences.
To avoid pain and seek pleasure for the greatest number of people, individuals must act
towards providing the greatest amount of happiness to the greatest number of people.
The argument is that taxation must be applied to the rich minority to increase happiness
and decrease the pain of the majority. The application of torture on a minority can even
exist if it saves the majority of people. This is best realised if the law is recognised as
positive law, strongly against liberalism. Law must be posited and thus positive, law is
produced from the clearly expressed will of the sovereign to realise good consequences
for the happiness of the majority. Supported the replacement of common law rules in
England with legislation applied by parliament
John Austin: a classic of the British command theory of law: argued that the law simply
and strictly is positive law, said by political superiors to political inferiors. The law is the
command of the political superior which the inferior must obey out of fear of
consequences and sanctions of disobedience. Here exists moral rules, customary law
and international law but they are only laws that are improper as they are not formed by
the sovereign. As the law is formed by the sovereign, it does not apply to the sovereign
and they are outside of the law. Positive law is based on the will of the sovereign.
Critiques of this theory: HLA Hart argued that Bentham and Austin’s ideas as they fear
the threat of sanctions miss a key quality of law, acting based on the right thing to do.
The law is binding as they are the right thing to do. Distinction between primary and
secondary rules. Hart argues that primary rules are commands and secondary rules do
, not create duties for individuals but rather create rules of application towards the primary
rules, and regulate how primary legal rules are recognised, changed and interpreted
(rules about rules). The systematic character of law led to the criticism of the sovereign
being outside of the law, as modern law regulates its creation, there is no legally
unlimited sovereign in England. The law empowers the government, parliament and the
monarch in the British system to act towards its function. The law is a self-regulating
autonomous system. Response to basic norm = internal point of view
Kelsen’s Pure Theory of Law: a non-reductive account of law and the autonomy of the
legal system. Careful consideration of the law being a social fact argues that law is not
strictly a social fact as it is normative rather than factual, this is based on legal obligation
and legitimate power. Norms depend on other norms, resulting in the law being
normative and having normative implications. (David Hume: is vs ought). Law cannot be
a social fact as it doesn’t result from sheer force, a legal norm can only be imputed and
derived from another legal norm. Facts are still important, but legal norms provide
schemes that allow for the interpretation of legal facts. The formal validity of the norm is
what counts and brings a rise of an obligation to an individual. Kelsen set against moral
and political explanations of the law where natural law aims to set law against moral
constraints and command theorists of law reduce law to the will of political authority. This
reduces law to something that is not legal. Law is set out based on its own terms. The
theory of law is the theory of interpreting facts based on legal norms to perceive
behaviour objectively. The law is, therefore, an autonomous system of norms that is to
be understood only on its own terms. The proper method for analysing legal norms must
be objective and should not follow subjective meanings and interpretations -> thus the
Pure Theory of Law is value-free and purified from subjective topics. the application of
law is a moment of juris-diction (the stating of the law) by officials of the legal system
authorised to do so
Subjective meaning: the way in which an individual or a group of individuals experiences or
understands an event or an act
Objective meaning: the meaning of an event or an act according to the law
The subjective meaning does not need to be the same as the objective meaning but it can
occasionally be
The separation thesis: law’s existence does not depend on its
moral correctness
The normativity thesis: legal norms cannot be based on mere
facts but only on other norms
Binding of norms: based on a hierarchy
Lower-level norms -> higher-level norms -> constitutional law->
historical first constitution
- Historical first constitution is the highest norm as there is no
previous constitution or based legal source, and has the
highest validity that individuals ought to obey
, - A valid legal norm can only derive from another valid legal norm: not any moral or
political obligation
- Modern positive law is an autonomous, hierarchical and historical system that depends
on us accepting to bind ourselves to it
Basic norm: attempt to solve the origin of the hierarchical legal system, the first historical
constitution
- Historical first law must be presupposed to be valid law
- Cannot be rationally founded, must be assumed to avoid breakdown from the hierarchy
of norms
- Law is a human creation, and thus a social fact AND legal norms derive validity from
only other legal norms
- Basic norm demands the interpretation of the first constitution to be legally valid and
binding
- It is therefore not a legal act, nor a matter of will: it is a matter of thought only – it has to
be presupposed and is a coercive order
- This requires collective action and respect towards following the basic norm
- Legal validity is not dependent on moral or political values as it relies on subjectivity->
legal norms must be objective
1) Effectivity: relies on collective action and obeying of individuals to have the law binding
on their actions, subjects should behave based on how the law prescribed. Effectiveness
is divided into two aspects: 1) that the law is applied by legal organs and 2) that
individuals obey these norms
2) Validity: requirement that legal norms correspond to formal criteria, validity REQUIRES
effectivity, without effectivity there is no validity present, even if it exists
Legal positivists sought to clarify our understanding of law – a description of what the law is – by
freeing it from value judgements about what it ought to be (no moral or political consideration)
Legal reasoning= assumed legal norm (built on by other legal norms) + relevant facts
Carl Schmitt:
Influential works during the Weimar period in Germany with his theory of sovereignty
Constitutional theory: applied his theory to the interpretation of the Weimar constitution
Sided with the Nazis after 1933, obtained an influential position in the legal profession in
socialism
Defended Hitler’s extrajudicial killings of political opponents and the killing of Jewish Germans
Theories behind his association with the Nazis: pursuing an advancement in his own career,
anti-liberal and anti-semitism allowed him to support the regime
Schmitt’s work focused on international law: foundations of international law
Detained as a potential defendant in the Nuremberg trials
Schmitt’s views on sovereignty and emergency powers are seen as the intellectual basis on
calls for a strong executive power which is unlimited by constraints of legality
Schmitt’s theory on popular sovereignty
Schmitt’s conception of international order
