Legal Positivism

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by Kenneth Einar Himma


Legal positivism is an account of the concept of law.  On this view, it is part of the very nature of law (i.e., either explicit or implicit in our conventions for using the term “law”) that its existence and content can be fully explained by the contingent social activity of persons who serve as officials in the system; this means not only that the existence and content of legal norms obligating citizens are explained by social activity, but also that the existence and content of legal norms that define how law is to be made, changed, and adjudicated are explained by social activity. All law, including so-called rules of recognition, is manufactured by social activities.  Accordingly, legal positivism denies that there are any necessary moral constraints either on the content of the law or on the interpretive activities of judges. Historically prominent positivists include Jeremy Bentham, John Austin, Hans Kelsen, H.L.A. Hart, and Joseph Raz.

I. Introduction

There are a number of different types of legal theory. Descriptive legal theory is usually concerned with identifying or explaining certain features or properties of existing legal systems; such theory is, at least, partly empirical in character. A descriptive legal theorist, for example, might be concerned with identifying or explaining the content of legal norms that purport to govern information privacy in the U.S. or with identifying or explaining the function that some set of legal practices in the U.S. purports to serve.  In contrast, normative legal theory is largely concerned with determining the properties that legal norms or institutions must have to be morally legitimate. A normative legal theorist, for example, might argue that law, as a matter of substantive moral theory, should protect information privacy in a number of specified ways. Conceptual theories of law, however, attempt to address an underlying foundational issue taken for granted by normative and descriptive theories – namely, the nature of law as such – and hence attempt to answer the question “What is law?” Conceptual theories attempt to identify those features and properties that constitute the nature of law as such and hence distinguish entities that are properly characterized as “law” from entities that are not properly characterized as “law.” These theories are characterized as conceptual because theorists ground them in our core conventions regarding the use of concept-words like “law” and “legal system”; insofar as we would not call something that lacked a procedure for making and changing law a “legal system,” the inclusion of such a procedure is a necessary feature of a legal system. This should not be taken to suggest that positivism purports to provide a definition of “law” in the ordinary sense of “definition.” Rather, it is merely to acknowledge that the content of our concepts is shaped, in part, by the way in which we use the associated concept-terms. Conceptual analysis may begin from these conventions, but it goes much deeper than that, identifying (and sometimes evaluating) the deeper metaphysical presuppositions of these ordinary usages. Legal positivism is a conceptual theory that attempts to explicate the concept of law and other concepts central to legal practice as commonly understood by judges, lawyers, and citizens. At the most general level, legal positivism explains the content of law and legal institutions entirely in terms of social facts and activities. Insofar as the term “law” is commonly (and correctly) used to refer to morally illegitimate norms and systems of norms purporting to be legal in character, it follows that there are no conceptually necessary moral constraints on the content of laws or legal systems. Thus, the issue of whether a particular society has law depends entirely on whether that society has certain institutional structures in place for manufacturing and adjudicating rules and not on whether the content of the rules satisfy some favored set of moral norms.

II. The Central Tenets of Legal Positivism

Conceptual theories of law like positivism are largely focused on giving a global account (i.e., one that applies to all possible legal systems) of the criteria of legality (or validity).  These criteria purport to serve two functions.  First, the criteria distinguish norms that count as law from norms that do not have this status – though such criteria do not necessarily constitute anything that would count as a test or decision procedure for identifying the law of any particular legal system.  Second, the criteria describe the properties that explain why legal norms have the status of law: such norms have this status because they instantiate those properties. The property of being duly enacted by the U.S. Congress and signed by the President of the U.S. contributes to distinguishing norms that count as (federal) law from norms that do not, but it also explains why norms that count as federal law have this special status: it is the fact that such norms have this property, other things being equal, that constitutes them as valid legal norms. Being duly enacted and properly signedconfers the status of federal law upon a norm. Global accounts of the criteria of legality also indicate what sorts of institutions or features are necessary to bring a legal system into existence. Consider, for example, John Austin’s (1790-1859) famous view that, as a conceptual matter, laws are commands of sovereigns backed by a threat of a sanction.  Austin’s account of the criteria of legality, of course, help to distinguish what counts as law from what doesn’t in a particular society, but it also explains what brings a legal system into existence: on Austin’s view, it is the presence of a sovereign who makes and enforces general norms that is the foundation of the legal system in that society.  Indeed, it would not be implausible to characterize the legal system on an Austinian account as just the set consisting of the sovereign, together with those norms and any other agencies that contribute to adjudicating and enforcing those norms. Contemporary positivism is grounded in three claims about the criteria of legality: (1) the claim that there are no conceptually necessary moral criteria of legality (the Separability Thesis); (2) the claim that the status of any norm as law is determined entirely by social facts or processes (the Social Fact Thesis); and (3) the claim that the criteria of legality in any possible legal system are determined by the conventional practices of those persons who serve as officials of the system in a legislative, executive, or judicial capacity (the Conventionality Thesis).

A. The Separability Thesis

The Separability Thesis denies there are any conceptually necessary moral constraints on the content of law.  As John Austin put it, “The existence of law is one thing: its merit and demerit another.  Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry” (1832, p. 157).  As H.L.A. Hart puts the thesis, “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (1996, 185-86). As contemporary positivists understand it, the Separability Thesis asserts a very modest claim about the law: it is possible for a legal system to have criteria of legality that do not include any moral norms.  Since there might be legal systems with no moral criteria of legality, there is no contradiction in thinking that there could be laws that are unjust or legal systems that are morally illegitimate.  In other words, it is not part of our concept of law that laws are just or that legal systems are morally legitimate.  Legality and legitimacy, as Jules Coleman has put it, are different issues. The Separability Thesis should be distinguished from certain claims commonly associated with it.  The Separability Thesis neither asserts nor implies that legal systems with moral criteria of legality are not possible.  While exclusive legal positivists believe that there can be no moral criteria of legality and that all such criteria must be source-based, exclusive positivists ground these views in claims about the nature ofauthority – and not in the Separability Thesis.  As is readily evident, the claim that it is not necessarily true that there are moral criteria of legality clearly does not imply that it is necessarily true that there are no moral criteria of legality; the placement of the negation makes all the difference here. Further, the Separability Thesis neither asserts nor implies that there are no necessary relations between law and morality.  Hart believes that, given the facts of human psychology and physiology, the law must include norms that protect property and prohibit physical assaults on innocent human beings, which reflect the content of the moral law.  But notice that it is certain facts about human beings – and not something in the concept of law – which explains the necessity of such laws.  Accordingly, the necessity of such laws is not conceptual (i.e., part of a theoretical definition of the concept), but is rather psychological or sociological in character. Surprisingly, the Separability Thesis neither asserts nor implies that there are no conceptually necessary relations between law and morality.  Many positivists, for example, follow Joseph Raz in believing that it is part of the very nature of law (i.e., implicit in the concept of law) that it claims morally legitimate authority.  While it is true that there are many legal systems of which this claim is false, there are no legal systems, according to this influential view, that fail to make this claim.  Since a full account, then, of the content of the concept of law would have to include the idea that law claims such authority, the concept of law includes reference to moral concepts.  Law is thus conceptually related to morality, on Raz’s view.

B. The Social Fact Thesis

According to the Social Fact Thesis, laws and legal institutions are social constructions in the following sense: the existence and content of these entities are constructed (or determined) by social facts about how persons who serve as officials in the legal system behave in the exercise of their official duties.  For example, these facts will include empirically descriptive claims about which procedures legislators believe they must follow to successfully enact legal content, as well as claims about which norms judges believe they must follow to properly adjudicate legal disputes. The Social Fact Thesis, however, should not be taken to imply the exclusive positivist’s view, known as the Sources Thesis, that the criteria of legality are exclusively source-based.  According to the Sources Thesis, the existence and content of the law are fully determined by its social sources in legislative or judicial acts.  While the Sources Thesis implies the Social Fact Thesis, the converse is false: the Social Fact Thesis is consistent with the inclusive legal positivist view that there can be socially constructed criteria of legality which make moral merit a necessary or sufficient condition for something to count as law.  In such a legal system, a norm prohibiting intentional killing might have the status of law not in virtue of some official act of promulgation, but in virtue of its moral merits. The Social Fact Thesis, however, does exclude the classical natural law view, discussed below, that there are necessary moral constraints on the content of the law.  If this is true, then the existence and content of the law is determined, at least in part, by whether it conforms to these moral constraints.  The fact that a norm is socially promulgated is not enough to ensure that it has the status of a law; in addition, it must conform to the relevant set of moral principles.  Thus, while the Social Fact Thesis is consistent with inclusive positivism, it is inconsistent with classical natural law theory. The Social Fact Thesis should not be construed as implying any particular theory of adjudication.  In particular, it should not be construed as implying a legal formalist view that judges are obligated to decide cases in accordance with the clear meanings of the terms used in previous legislative acts.  Legal positivism is consistent with a wide variety of theories of adjudication.  Indeed, according to legal positivism, the principles of adjudication that govern judicial decision-making in any legal society will be determined by the contingent practices of legal officials.

C. The Conventionality Thesis

Most contemporary positivists follow H.L.A. Hart in believing that the content of the criteria of legality are fixed or determined by a conventional rule of recognition.  On this view, the criteria that determine what counts as law in any given society are defined by the norms that officials collectively accept and obey in performing their official duties as legislators, executives, and judges.  For example, the recognition rule that validates as federal law any norm passed by the U.S. Congress and signed by the President which is consistent with the substantive requirements of the U.S. Constitution is authoritative in the U.S. because it is accepted and practiced by officials in the U.S. The criteria of legality, then, are determined by a convention or, as Hart put it, a social rule.  On Hart’s view, a conventional rule of recognition R is determined by a convergence of behavior and attitude: officials not only converge in satisfying the requirements of R, but also converge in taking the “internal point of view” towards R.  Officials accept as a standard that governs their official behavior in the sense that they regard deviation from as a reason for censure or criticism. It should be noted, however, that the internal point of view, as Hart formulates the idea, does not require that officials believe that the rule of recognition is morally legitimate.  On Hart’s view, officials can accept the rule of recognition for moral reasons, but they can also accept the rule of recognition for prudential reasons – as occurs, say, when a judge decides to adopt a standard of constitutional interpretation as a means of advancing herself within the system.

The Conventionality Thesis is the most controversial of positivism’s three core theses.  Many people, for example, follow Ronald Dworkin in believing that the Conventionality Thesis is inconsistent with judicial disagreement in hard cases.  On this view, the mere fact that judges frequently disagree on pivotal cases involving the criteria of legality shows that the content of the criteria of legality cannot be exhausted by the norms officials agree upon: conventions end where the scope of agreement ends.  If judges disagree about whether some norm defines a criterion of legality, then there cannot be any convention about whether it does so.  Since P either defines a criterion of legality or it does not and since there is no convention about whether does or does not define a criterion of legality, it follows, according to Dworkin’s semantic sting argument, that the criteria of legality are not exhausted by the conventions practiced by officials. In response, positivists have criticized Dworkin’s semantic sting argument on a number of grounds.  For example, some positivists (e.g., Coleman 2001) argue that Dworkin wrongly presupposes that there cannot be disagreement about the content of a convention.  Others (Himma 2003) argue that there judicial disagreement about the criteria of legality is rarely pivotal in character.

III. Rivals to Legal Positivism

There are two principal rivals to legal positivism.  The first is the classical natural law view of St. Thomas Aquinas and William Blackstone.  On this view (as traditionally interpreted), it is part of law’s very nature that it is just; it is therefore a conceptual truth that no norm inconsistent with the natural moral law can count as a law (in any legal system).  As Blackstone put the point: This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.  It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. The classical natural law view denies all three positivist theses.  The claim that the criteria of legality in every conceptually possible legal system include consistency with the natural moral law is, as is readily evident, simply the negation of the Separability Thesis.  This claim implies that the content of the law is not fully determined by social facts since it also depends on morality.  It also implies that the content of the criteria of legality is not fully determined by the conventional practices of officials since conformity to the moral law is a legality criterion regardless of what officials say or do. The second rival to positivism is Ronald Dworkin’s third theory of law.  According to Dworkin’s theory, the law of a community includes not only the statutes and decisions promulgated through the conventionally-grounded practices of a legal system, but also those moral principles that provide a justification for the coercive enforcement of those statutes and judicial decisions.  As Dworkin puts it in Law’s Empire, “propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (225). Judges, on Dworkin’s view, ought to decide hard cases by reference to those principles that show existing legal practice in its best moral light.  Accordingly, Dworkin’s theory of adjudication distinguishes two dimensions: the dimension of fit and the dimension of justification.  According to the first, judicial decisions should be based on a principle that minimally coheres (or fits) with the pre-existing legal materials and history.  According to the second, if there is more than one principle that minimally coheres with the pre-existing legal materials, the judge should choose the one that provides the best constructive justification for those pre-existing materials.  That is, judges should select the morally best of those principles that are fairly characterized as interpretations of the existing materials because they minimally cohere with them. Dworkin’s position is somewhat difficult to situate relative to positivism’s three theses because he is not altogether clear about whether he intends his claims as conceptual in the same sense that positivism’s theses are conceptual.  While Dworkin claims that “law is different from morality” (Dworkin 1996, 36) and hence seems to accept the Separability Thesis, the claim that law includes the moral principles that justify statutory and common law principles, if construed as a conceptual truth, seems to imply there are necessary moral criteria of legality.  In any event, it is clear that he denies the Conventionality Thesis since, as noted above, he believes that the Conventionality Thesis is inconsistent with judicial disagreement in hard cases about the criteria of legality.

Bibliography

John Austin The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995)

William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979)

Brian Bix, “On the Dividing Line Between Natural Law Theory and Legal Positivism,” 75 Notre Dame Law Review 1613 (2000)

Jules Coleman, “Negative and Positive Positivism,” 11 Journal of Legal Studies 139 (1982)

Jules Coleman, The Practice of Principle (Oxford: Clarendon Press, 2001)

Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977)

Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986)

Leslie Green, “The Concept of Law Revisited,” 94 Michigan Law Review 1687 (1996)

H.L.A. Hart, The Concept of Law, Revised Edition (Oxford: Oxford University Press, 1994)

Kenneth Einar Himma, “Making Sense of Constitutional Disagreement: Legal Positivism, the Bill of Rights, and the Conventional Rule of Recognition in the United States,” Journal of Law in Society, vol. 4, no. 2 (Winter 2003)

Kenneth Einar Himma, “Law’s Claim to Legitimate Authority,” in Jules Coleman (ed.), Hart’s Postscript (Oxford: Oxford University Press, 2001)

Hans Kelsen, General Theory of Law and State (A. Wedberg, tr.) (New York: Russell & Russell, 1961)

Hans Kelsen, Pure Theory of Law (M. Knight, tr) (Berkeley, CA: University of California, 1967)

Matthew Kramer, In Defense of Legal Positivism (Oxford: Oxford University Press, 1999)

Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979)

Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986)

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