School
Legal positivism
Overview
In legal philosophy, legal positivism is the theory that the existence of the law and its content depend on social facts, such as acts of legislation, judicial decisions, and customs, rather than on morality. This contrasts with theories such as natural law, which hold that law is necessarily connected to morality in such a way that any law that contradicts morality lacks legal validity.
Thomas Hobbes defined law as the command of the sovereign. This idea was elaborated in the 18th and 19th centuries by legal philosophers such as Jeremy Bentham and John Austin, who argued that a law is valid not because it is intrinsically moral or just, but because it comes from the sovereign, is generally obeyed by the people, and is backed up by sanctions. Hans Kelsen developed legal positivism further by separating law not only from morality, as the early positivists did, but also from empirical facts, introducing the concept of a norm as an "ought" statement as distinct from a factual "is" statement. In Kelsen's view, the validity of a legal norm derives from a higher norm, creating a hierarchy that ultimately rests on a "basic norm": this basic norm, not the sovereign, is the ultimate source of legal authority.
In addition to Kelsen, other prominent legal positivists of the 20th century include H. L. A. Hart and Joseph Raz.
Overview adapted from Wikipedia (CC BY-SA 4.0; see the article history for authors).
Possible passages
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In their case, therefore, the moral law is an imperative, which commands categorically, because the law is unconditioned; the relation of such a will to this law is dependence under the name of obligation, which implies a constraint to an action, though only by reason and its objective law; and this action is called duty, because an elective will, subject to pathological affections (though not determined by them…
Immanuel Kant, The Critique of Practical Reason
States what Legal positivism is; the author is tied to Legal positivism in the knowledge graph.
Positive, are those which have not been for Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator. Another Division Of Law Again, of Positive Lawes some are Humane, some Divine; And of Humane positive lawes, some are Distributive, some Penal.
Thomas Hobbes, Leviathan
States what Legal positivism is; the author is tied to Legal positivism in the knowledge graph.
The conception of an objective principle, in so far as it is obligatory for a will, is called a command (of reason), and the formula of the command is called an imperative.
Immanuel Kant, Fundamental Principles of the Metaphysic of Morals
States what Legal positivism is; the author is tied to Legal positivism in the knowledge graph.
Philosophers who discussed Legal positivism
- Hans Kelsen
- Jeremy Waldron
- B. R. Ambedkar
- John Finnis
- Joseph Raz
- Ronald Dworkin
- H. L. A. Hart
- Carl Schmitt
- Jeremy Bentham
- Oliver Wendell Holmes Jr.
- John Austin (legal philosopher)
- Leslie Green (philosopher)
- Gustav Radbruch
- Lon L. Fuller
- Jules Coleman
- Leon Petrażycki
- Alf Ross
- Evgeny Pashukanis
- Robert Alexy
- António Castanheira Neves
- Carlos Cossio
- Luigi Ferrajoli
Related ideas
- Empiricism
- George Berkeley
- Hans Kelsen
- Auguste Comte
- Norberto Bobbio
- Immanuel Kant
- John Locke
- Jurisprudence
- Leviathan (Hobbes book)
- Max Weber
- Social constructionism
- Natural law
- Joseph Raz
- Brian Leiter
- Stanford University
- Legal realism
- Ronald Dworkin
- Thomas Hobbes
- H. L. A. Hart
- Jeremy Bentham
- Philosophical analysis
- Oxford University Press
- Rudolf Carnap
- Cambridge University Press
Place in the tradition
Part of Analytic philosophy.