Positivism

by

Jörg Kammerhofer

• LAST REVIEWED: 31 August 2015
• LAST MODIFIED: 31 August 2015
• DOI: 10.1093/obo/9780199796953-0059

Introduction

Legal positivism means different things to different scholars, and traditions of positivism differ among legal scholarship of municipal legal systems, international law, and theorists/philosophers of law. Therefore this article will separate legal theoretical writings on positivism from international legal scholarship on the topic. The differences between positivists are so considerable that it would be moot to try to impose a lowest common denominator or a definition of positivism. However, we can identify some typical positions held by legal positivists: (1) Either the identification or the method of creation of rules of law (legal norms) is based on “sources,” that is, on form, rather than on the content of the rule alone. (2) The positive law as object of scholarship is, in the original Latin sense, positus. It is somehow “put,” made more than fictive imaginings, for example, by social convention or by having a real act of will as its basis. (3) Positivism is also identified by the “separability thesis” (Hart 1957–1958, cited under Modern Approaches and Primary Texts): law can be separated from the realm of morals and can exist, and be valid law, independently from its moral value. This is sometimes also expressed by positivists in espousing a separation between the law in force and the law that is desirable (lex lata v. lex ferenda). (4) Equally, positivism can be defined by its traditional antipathy to the possibility or cognizability of “natural law” as a realm of absolute norms above positive law and controlling it. (5) With theses (3) and (4), positivists, to a greater or lesser degree, espouse a form of value relativism: no values (rules, norms, precepts, standards) are absolute and, by their very nature or content, are so much “better” than other values that they must necessarily exist and trump all others. (6) Positivists may also espouse the categorical distinction between the real world (or statements about what “is”) and the world of values (or statements about what “ought to be”), which is sometimes known as the is-ought dichotomy. Hans Kelsen is famous for the maxim “no is from ought, no ought from is alone.” However, the closer a positivist thesis is to legal realism, the less likely the scholar will separate strictly between “is” and “ought.” A scholar does not have to incorporate all of these to be called a positivist (particularly if writing before approximately 1945), but some of these elements will probably be present in all positivist writings.

Positivism in General Legal Philosophy: Textbooks, Encyclopedia Entries, and Overviews

This section is devoted to giving a somewhat arbitrary smattering of the flood of works (particularly textbooks and handbooks) on legal theory, philosophy, and/or jurisprudence from the major Continental and Anglo-Saxon traditions. Three remarks seem apposite to guide the reader through this section. First, in general legal philosophy, the cultural differences are very marked when compared with international legal writings. For example, most texts in English are reduced to a very narrow canon of authors, particularly with respect to positivism. Thus we find in Himma 2005 no mention of Continental traditions. Particularly with respect to Hans Kelsen, the accounts are often rather culturally tainted. While Wacks 2012 may be taken as the exception, Anglo-Saxon writings (Green 2009 and Coleman and Shapiro 2002) are marked unfortunately by far more insularity than their Continental counterparts. However, this does not mean that Continental writings do not have their own blind spots. Of the two German-language texts selected, Kaufmann 1996 shows clearly the German (national) postwar impatience and disappointment with positivism, which the generation represented by Mahlmann 2010 has overcome. However, even French-language anthologies on positivism (Grzegorczyk, et al. 1992) show that the leading cultures, debates, and intellectual-historical streams of positivism have developed in German- and English-speaking countries.

• Coleman, Jules, and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford: Oxford University Press, 2002.

  While the book is a standard reference volume within anglophone jurisprudence, chapters 3 and 4 do not constitute an introductory text to exclusive and inclusive legal positivism, respectively. However, they are certainly an advanced and well-executed discussion of typical problematiques (problematics) of Anglo-Saxon positivism, such as the separability, conventionality, and social fact theses.

• Green, Leslie. “Legal Positivism.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. Stanford, CA: Stanford University, 2009.

  Sophisticated, balanced, and easily accessible introduction to the modern Anglo-Saxon debate on positivism. As such, it is also severely limited in its representativeness, as positivism is reduced to an “Anglosphere” reading and the analysis is open to the objection of being culturally biased.

• Grzegorczyk, Christophe, Françoise Michaut, and Michel Troper, eds. Le positivisme juridique. Paris: Librairie Générale de Droit et de Jurisprudence, 1992.

  The book is a selection (of French translations) of text fragments concerned with legal positivism and is interesting as such. The introduction contains a helpful overview of the various intellectual streams from which positivism stems though with a slight French twist, for example, the exegetic school as well as sociological, realist, institutionalist, and postmodernist trends. See pp. 33–67 especially.

• Himma, Kenneth Einar. “Legal Positivism.” In Internet Encyclopedia of Philosophy. Edited by James Fieser and Bradley Dowden. 2005.

  This introduction is also restricted to the Anglo-Saxon debate but gives a slightly more orthodox reading of the notion within that tradition. It does not even begin to explore non-English-language writers such as Hans Kelsen.

• Kaufmann, Matthias. Rechtsphilosophie. Freiburg, Germany: Karl Alber, 1996.

  Typical representative of the slightly antipositivist (particularly anti-Kelsenian) mainstream narrative on positivism in the Federal Republic of Germany. It makes characteristically short shrift of consistent forms of positivism, such as the pure theory of law, which is critiqued without sustained engagement or an attempt at a deeper understanding. More sympathetic toward H. L. A. Hart. See pp. 138–179 especially.

• Mahlmann, Matthias. Rechtsphilosophie und Rechtstheorie. Baden-Baden, Germany: Nomos, 2010.

  By way of contrast with Kaufmann 1996, this author—while not a positivist himself—describes modern positivism, particularly that of Hans Kelsen, in a more differentiated way. The book shows how the younger generation of German scholars has come to a more sober understanding of the role and limits of that approach. See pp. 143–150 especially.

• Wacks, Raymond. Understanding Jurisprudence: An Introduction to Legal Theory. 3d ed. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/he/9780199608263.001.0001

  This is an extraordinarily well-written undergraduate textbook for English-language jurisprudence courses. It has a broad outlook, takes into account other traditions of positivism, and emphasizes the diversity of the positivist “school.” Both its value and its (limited) shortcomings lie in the high level of abstraction employed. See pp. 57–117 especially.