Legal Positivism and Natural Law: Key Theories and Critiques

Bentham- Main claim

Law is the command of a sovereign, to be described separately from morality.

Law vs. morality

Validity comes from the sovereign; morality (utility) is for reform.

Expositor vs. Censor

Expositor = describe law as it is; Censor = critique law as it ought to be.

Critique of natural rights

Natural rights are "nonsense upon stilts."

Austin Command theory

Law = command of a determinate sovereign, backed by sanctions, habitually obeyed.

Austin Separation thesis

Unjust laws are still laws.

Austin Problems

Continuity of law after sovereigns die; laws without sanctions; international law.

Austin Contribution

Systematized Bentham's ideas; foundation for Hart.

Hart Definition of law

Union of primary (duties) and secondary (power-conferring) rules.

Hart Rule of recognition

Ultimate rule used by officials to identify valid laws.

Hart Response to Austin

Solves continuity and sanctions problem with secondary rules.

Hart Criticisms

Sharp separation of law/morality; rule of recognition may be circular.

Fuller Inner morality of law

Eight principles of legality (clarity, publicity, consistency, etc.).

Fuller Failure of legality principles

Rules that break them aren't truly law.

Fuller Critique of positivism

Law has inherent procedural morality.

Fuller Criticism

Guarantees procedure, not substantive justice.

Finnis Basis of law

Universal basic goods (life, knowledge, friendship, etc.).

Finnis Unjust laws

Exist as social facts but lack moral authority ("not true law").

Finnis Tradition revived

Thomistic natural law.

Finnis Criticism

Goods vague/subjective; collapses law into morality.

Waldron Legitimacy of law

Democratic procedures and inclusive deliberation.

Waldron Dignity of legislation

Legislatures are central to democracy.

Waldron Law and morality

Law resolves moral disagreement through procedure.

Waldron Criticism

Risks majoritarianism; courts may protect rights better.

Frank Main claim

Law is what courts do; rules alone don't determine outcomes.

Frank Law in books vs. law in action

Written statutes vs. judicial practice.

Frank Critique of positivism

Law is uncertain; judicial discretion matters.

Frank Criticism

Can make law seem arbitrary; underplays rule stability.

Frank Comparisons

Frank Separation thesis

Law and morality distinct; validity depends on source (Bentham, Austin, Hart).

Hart vs. Austin

Hart: rules (primary/secondary) + rule of recognition; Austin: sovereign + sanctions.

Fuller & Finnis vs. Positivism

Fuller: procedural morality; Finnis: substantive morality.

Waldron vs. Natural Law

Legitimacy from democracy, not natural law.

Frank vs. Positivists

Emphasizes judicial decision-making and unpredictability.