Legal Positivism

by

Michael Sevel, Brian Leiter

• LAST REVIEWED: 12 January 2023
• LAST MODIFIED: 10 May 2010
• DOI: 10.1093/obo/9780195396577-0065

Introduction

Legal positivism is one of the leading philosophical theories of the nature of law, and is characterized by two theses: (1) the existence and content of law depends entirely on social facts (e.g., facts about human behavior and intentions), and (2) there is no necessary connection between law and morality—more precisely, the existence and content of a law do not depend on its merits or demerits (e.g., whether or not it lives up to the ideals of justice, democracy, or morality). The theory has enjoyed a large number of adherents since it was first articulated by Jeremy Bentham in the 18th century and has undergone considerable modification and development since then. Legal positivism is accepted today by most Anglophone philosophers of law, though natural law theories, its natural opponents, continue to challenge positivism’s fundamental claims.

General Overviews

The two most important statements of positivism in the 20th century are Hart 1997 (originally published 1961) and Kelsen 1970 (first published in 1934). Hart was influenced by earlier British positivists like Austin and Bentham, as well as the later Wittgenstein, but his has proven to be the most influential text on positivism in the English-speaking world. Hart argues that every legal system is a union of obligation-imposing (“primary”) rules and power-conferring (“secondary”) social rules; in the latter case, a sufficient number of officials of the system accept those rules as guides to their conduct and standards of evaluation of the conduct of other legal participants. The most fundamental secondary rule of the system is what Hart calls a “rule of recognition,” which specifies the ultimate criteria of legal validity (e.g., “what Parliament enacts is law”). Hart’s discussion served as the focal point of nearly all discussions of legal positivism since its publication in 1961. The second edition (Hart 1997) includes a posthumously published postscript in which Hart addresses primarily the criticisms of Ronald Dworkin, a response which has itself spawned a considerable literature. Kelsen’s theory is also one of the great positivist theories of the 20th century and is inspired more by certain themes in European (and particularly Neo-Kantian) philosophy. Kelsen’s texts have been less influential in the Anglophone world and received much less scholarly attention, due no doubt to his difficult and sometimes obscure prose. Green 2003 gives a thorough and up-to-date overview of the various competing positivist theories and contains a short but reliable bibliography for further reading. Leiter 2003 and Shapiro 2007 give useful summaries of the dialectic between positivists and their critics over the past three decades. Gardner 2001 takes a different tack by illuminating the nature of positivism by distinguishing it from other views which are often mistakenly identified as central to positivism.

• Gardner, John. “Legal Positivism: 5 1/2 Myths.” American Journal of Jurisprudence 46 (2001): 199–227.

  Extensive and wide-ranging discussion distinguishing legal positivism from many other views with which it is often confused. An important article, though most useful to those with a basic knowledge of the scholarly literature.

• Green, Leslie. “Legal Positivism.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. 2003.

  This is a general but succinct overview of the history and development of positivism since its inception. Also a brief discussion of the broader methodological problem of the role of evaluation in constructing theories of law, an issue which has moved to the forefront of debate among positivists and legal theorists more generally. A good introduction for undergraduates, graduate students, and scholars alike.

• Hart, H. L. A. The Concept of Law. 2d ed. Oxford: Clarendon, 1997.

  Originally published 1961, Hart’s book is by far the most influential statement of legal positivism in the English-speaking world of the 20th century. Hart’s style is admirably clear and accessible, so this is a suitable introduction for undergraduates as well as graduate students and scholars.

• Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Berkeley: University of California Press, 1970.

  English translation of the second edition of the Reine Rechtslehre, published in 1960 (a significant expansion and revision of the 1934 book of the same name). With Hart 1997, one of the major statements of legal positivism in the 20th century. Kelsen’s positivism, however, has been somewhat less influential among Anglophone legal philosophers. Kelsen is difficult, but he is essential reading for graduate students and scholars.

• Leiter, Brian. “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.” American Journal of Jurisprudence 48 (2003): 17–51.

  The first half of the essay gives an overview of Hart’s theory, Dworkin’s criticisms of that theory, and replies to those criticisms and developments of positivism, especially in the work of Raz. Usefully compared with Shapiro 2007. Reprinted in Leiter’s Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007).

• MacCormick, Neil. H. L. A. Hart. 2d ed. Stanford, CA: Stanford University Press, 2008.

  An authoritative introduction to all aspects of Hart’s work in legal philosophy, including his positivist theory of law.

• Shapiro, Scott J. “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed.” In Ronald Dworkin. Edited by Arthur Ripstein, 22–55. Cambridge, UK: Cambridge University Press, 2007.

  The first half of the paper consists of another survey of the dialectic between Hart and his critics, especially Dworkin. Differs from Leiter 2003 in arguing that Dworkin’s Law’s Empire (Dworkin 2003, cited under Dworkin’s Later Criticisms) developed a criticism—how to explain “theoretical disagreements” in law—to which positivists failed to respond. Concludes with a somewhat extravagant “positivist” response to the problem of theoretical disagreement. See also Criticisms of Positivism.