Legal Positivism Notes

Legal Positivism

Legal positivism is a philosophy of law that emphasizes the conventional and socially constructed nature of law.

• Law is synonymous with positive norms created by legislators or considered as common law or case law.
• Formal criteria, such as law's origin, enforcement, and effectiveness, are sufficient for a social norm to be considered law.
• Legal positivism does not base law on divine commandments, reason, or human rights.
• Positivism arose in opposition to classical natural law theory, which posits necessary moral constraints on the content of law.
• Legal positivism does not imply ethical justification or a stance on obedience to law.
• Positivists judge laws by their creation, not by justice or humanity.
• Judges make new law when deciding cases not clearly covered by existing rules.
• Creating law includes practicing, deciding, or tolerating certain practices of law.
• Legal positivism is opposed to sociological jurisprudence and hermeneutics of law, which study the circumstances of statutory interpretation.
• "Positivism" highlights that law is "positive" or "posited," contrasting with "natural" law derived from morality.

Table of Contents

1. The Pedigree Thesis
2. The Separability Thesis
   • Inclusive vs. Exclusive Positivism
3. The Discretion Thesis
4. Classic Criticisms of Positivism
   • Fuller’s Internal Morality of Law
   • Positivism and Legal Principles
   • The Semantic Sting
5. References and Further Reading

1. The Pedigree Thesis

The pedigree thesis asserts legal validity is a function of social facts.

• John Austin, drawing from Jeremy Bentham, argues that a legal system is distinguished by a sovereign habitually obeyed but not obeying any human superior.
• According to Austin, a rule R is legally valid in society S if and only if R is commanded by the sovereign in S and backed by a sanction threat.
• The severity of the sanction is irrelevant.

Criticisms of Austin's Command Theory:

1. Sovereign in Democratic Societies:
   • Democratic societies lack an identifiable sovereign.
   • In the United States, political power belongs to the people who elect lawmakers.
   • Elected lawmakers serve the people and are not repositories of sovereign power.
   • The voting population lacks immediate power to coerce behavior.
   • Ultimate political authority and the power to coerce behavior reside in different entities.
2. Legal Limitation of Sovereign Authority:
   • Austin believes a sovereign cannot be legally constrained.
   • Constitutional provisions limit legislative authority.
   • Austin argues constitutional law is positive morality, not law.
   • This is difficult to reconcile with constitutional law in the U.S., where courts see the constitution as a constraint on legal validity.
   • An unconstitutional act is not a law and confers no rights or duties (Norton v. Shelby County, 118 U.S. 425 (1886)).
   • The Supremacy Clause of Article VI of the Constitution states that the Constitution is the supreme law of the land.
3. H.L.A. Hart's Criticisms:
   • Hart argues Austin’s theory provides a partial account of legal validity because it focuses on rules that require citizens to do or abstain from certain actions (primary rules).
   • Hart believes a system consisting entirely of liberty restrictions found in criminal law is rudimentary.
   • Austin overlooks the presence of a second kind of primary rule that empowers citizens to create, modify, and extinguish rights and obligations (power-conferring). Examples: Contracts and wills.
   • These rules allow people to structure their legal relations.
   • Sophisticated systems have secondary meta-rules about primary rules.

Hart's Three Types of Secondary Rules:

1. Rule of Recognition: Specifies features that indicate a rule is part of the group and supported by social pressure.
2. Rule of Change: Enables a society to add, remove, and modify valid rules.
3. Rule of Adjudication: Provides a mechanism for determining whether a valid rule has been violated.

• Hart: Law is the union of primary and secondary rules.
• Austin's theory fails to acknowledge the importance of secondary rules.
• Hart also disagrees with Austin’s view that legal obligation is coercive.
• Hart says there is no difference between the Austinian sovereign and a gunman.
• Coercive force alone does not give rise to an obligation.
• Legal rules are obligatory because people accept them as standards that justify criticism and punishment of deviations.
• The subject who accepts the rule takes “the internal point of view” towards it.
• Hart argues that a majority of officials must take the internal point of view towards the rule of recognition.
• Citizens must generally obey primary rules that are legally valid according to the rule of recognition.
• Hart's two minimum conditions for a legal system's existence:
  1. Rules of behavior valid according to the system’s criteria must be generally obeyed.
  2. Rules of recognition and rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.
• Hart's view is vulnerable to the same criticism he levels against Austin.
• The gunman's belief that he is entitled to make the threat does not obligate the victim to comply with the orders.
• Hart's minimal legal system is no less coercive than Austin's legal system.

2. The Separability Thesis

The separability thesis asserts that law and morality are conceptually distinct.

• Klaus Faber interprets this as a meta-level claim that the definition of law must be free of moral notions.
• More commonly, it's seen as an object-level claim about the existence conditions for legal validity.
• H.L.A. Hart: "It is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality."
• It implies the existence of a possible legal system without moral constraints on legal validity.

a. Inclusive vs. Exclusive Positivism

• All positivists agree there are possible legal systems without moral constraints on legal validity.
• There are conflicting views on whether there are possible legal systems with such constraints.

1. Inclusive Positivism (incorporationism, soft positivism):
   • A society’s rule of recognition can incorporate moral constraints on the content of law.
   • Prominent inclusive positivists: Jules Coleman and H.L.A. Hart.
   • Hart: "The rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values."
2. Exclusive Positivism (hard positivism):
   • Denies that a legal system can incorporate moral constraints on legal validity.
   • Exclusive positivists like Joseph Raz subscribe to the source thesis.
   • The existence and content of law can always be determined by reference to its sources without recourse to moral argument.
   • Sources of law include circumstances of promulgation and relevant interpretative materials.

Exclusive positivism may seem difficult to reconcile with moral criteria of legal validity in legal systems like the U.S.

• Amendments like the Fourth Amendment and the First Amendment seem to make moral standards part of the conditions for legal validity.
• Exclusive positivists argue that such amendments can require judges to consider moral standards but cannot incorporate those standards into the law.
• When a judge refers to moral considerations, she creates new law, even when directed to consider moral considerations.
• All law is settled law, and questions of settled law can be resolved without moral arguments.
• If a legal question is not answered by legal sources, then the law is unsettled.
• Courts inevitably break new legal ground and rely on moral considerations.
• Raz: The law on a question is settled when legally binding sources provide its solution. In such cases, judges apply the law using legal skills.
• References to moral language in the law direct judges to consider moral requirements in resolving certain unsettled questions of law, but cannot incorporate moral requirements into the law.

3. The Discretion Thesis

• The discretion thesis posits that judges decide difficult cases by making new law in the exercise of discretion.
• Ronald Dworkin: If a case is not clearly covered by a valid legal rule, it cannot be decided by applying the law and must be decided by an official exercising discretion.
• A judge must decide the case by creating or promulgating a law that did not exist prior to the adjudication.
• The discretion thesis implies judges have a quasi-legislative lawmaking authority in cases that cannot be decided merely by applying law.
• Though often associated with positivism, the discretion thesis does not belong to positivism’s theoretical core.
• The pedigree and separability theses are conceptual claims true of every possible legal system.
• Many positivists regard the discretion thesis as a contingent claim that is true of some, but not all, possible legal systems.
• Hart believes there will inevitably arise cases that do not fall clearly under a rule but concedes a rule of recognition could deny judges discretion.
• Hart's inclusive positivism allows him to hold that a rule of recognition could require judges to decide cases in precisely the manner that Dworkin advocates.
• The discretion thesis is consistent with some forms of natural law theory.
• According to Blackstone’s classical naturalism, conformity with the natural law is a necessary condition for legal validity in every possible legal system.
• If the natural law is incomplete, there will inevitably arise issues that have multiple outcomes consistent with the natural law.
• Dworkin distinguishes three different senses in which a judge might be said to have discretion:
  1. A judge has discretion when she exercises judgment in applying a legal standard to a particular case.
  2. A judge has discretion when her decision is not subject to reversal by any other authority.
  3. A judge has discretion when her decision is not bound by any legal standards.
• Dworkin: Positivism’s discretion thesis is committed to the third sense of discretion, which he refers to as strong discretion.
• The thesis that judges have discretion only in the sense that they exercise judgment is trivially true, while the thesis that judges have discretion in the sense that their decisions are not subject to being reversed by a higher authority is false.
• Dworkin: The discretion thesis implies that judges have discretion to decide hard cases by what amounts to an act of legislation because the judge is not bound by any legal standards.
• The discretion thesis is inconsistent with ordinary legal practice because lawyers do not ask that the judge decide the relevant issue by making new law.
• Dworkin falsely presupposes an official cannot make new law unless there are no legal standards constraining the official’s decision.
• Lawmaking authorities in legal systems like the U.S. never have what Dworkin describes as strong discretion.
• Hart concedes that judicial lawmaking authority is limited in two respects: The judge's powers are subject to constraints, and the judge cannot use these to introduce large-scale reforms or new codes.
• What explains the judge’s discretion to make new law in a given case, on Hart’s view, is the absence of legal standards that dictate a uniquely correct answer to the case.
• The judge cannot decide such a case merely by applying existing law because there is more than one available outcome that coheres with existing law.
• In such instances, it is impossible to render a substantive decision without creating new law.
• The discretion thesis is vulnerable to one powerful objection: If a judge decides a difficult case by making new law, the case is being decided on the basis of a law that did not exist when the dispute arose.
• It seems patently unfair to deprive a defendant of property for behavior that did not give rise to liability at the time the behavior occurred.
• Dworkin believes difficult cases are not resolved by an exercise of judicial discretion and that there is always a right answer implicit in the pre-existing law.
• Since the right answer to even hard legal disputes is always part of pre-existing law, Dworkin believes that a judge can take property from a defendant in a hard case without unfairness.
• If fairness precludes taking property from a defendant under a law that did not exist at the time of the relevant behavior, it also precludes taking property from a defendant under a law that did not give reasonable notice that the relevant behavior gives rise to liability.
• As long as Dworkin acknowledges the existence of cases so difficult that only the best of judges can solve them, his theory is vulnerable to the same charge of unfairness that he levels at the discretion thesis because due process and fundamental fairness require reasonable notice of which behaviors give rise to liability.

4. Classic Criticisms of Positivism

a. Fuller's Internal Morality of Law

• Lon L. Fuller argues that law is subject to an internal morality consisting of eight principles:
  • (P1) the rules must be expressed in general terms
  • (P2) the rules must be publicly promulgated
  • (P3) the rules must be (for the most part) prospective in effect
  • (P4) the rules must be expressed in understandable terms
  • (P5) the rules must be consistent with one another
  • (P6) the rules must not require conduct beyond the powers of the affected parties
  • (P7) the rules must not be changed so frequently that the subject cannot rely on them
  • (P8) the rules must be administered in a manner consistent with their wording
• No system of rules that fails minimally to satisfy these principles of legality can achieve law’s essential purpose of achieving social order through the use of rules that guide behavior.
• Fuller: A total failure in any one of these eight directions results in something that is not properly called a legal system at all.
• These internal principles constitute a morality because law necessarily has positive moral value in two respects:
  1. Law conduces to a state of social order.
  2. Law does so by respecting human autonomy because rules guide behavior.
• Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller’s view, that they constitute a morality.
• Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality that is inconsistent with the separability thesis.
• Hart responds by denying Fuller's claim that the principles of legality constitute an internal morality, stating that Fuller confuses the notions of morality and efficacy.
• Hart: Insistence on classifying these principles of good legal craftsmanship as morality perpetrates a confusion between purposive activity and morality.
• All actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy.
• If such standards of efficacy conflict with morality, they are distinct from moral standards.
• While Hart concedes that something like Fuller’s eight principles are built into the existence conditions for law, he concludes that they do not constitute a conceptual connection between law and morality.
• Hart’s response overlooks the fact that most of Fuller’s eight principles double as moral ideals of fairness.
• It is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required.
• It is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible.
• Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy.
• The existence of a legal system is consistent with considerable divergence from the principles of legality.
• Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions and not because they function as moral ideals.
• Fuller's jurisprudential legacy is that he fleshed out the implications in guiding humans through rules in the form of his principles of legality.

b. Positivism and Legal Principles

• Dworkin argues that, in deciding hard cases, judges often invoke legal principles that do not derive their authority from an official act of promulgation.
• If unpromulgated legal principles constitute law, then it is false, contra the pedigree thesis, that a proposition of law is valid only in virtue of having been formally promulgated.
• According to Dworkin, principles and rules differ in the kind of guidance they provide to judges:

Rules are applicable in an all-or-nothing fashion.

• If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.
• Principles only suggest a particular outcome.
• Conflicting principles provide competing reasons that must be weighed according to the importance of the respective values they express.
• Rules necessitate, where principles only suggest, a particular outcome; and principles have, where rules lack, the dimension of weight.
• Dworkin cites the case of Riggs v. Palmer as representative of how judges use principles to decide hard cases and the NY court considered the question of whether a murderer could take under the will of his victim.
• The court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong.
• Dworkin: The court decided the case by citing “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute”.
• The positivist might respond that when the Riggs court considered this principle, it was reaching beyond the law to extralegal standards in the exercise of judicial discretion.
• But Dworkin points out that the Riggs judges would rightfully have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it.
• Dworkin maintains that the legal authority of standards cannot derive from promulgation in accordance with purely formal requirements.
• Unlike legal rules, legal principles lack a canonical form and hence cannot be explained by formal promulgation.
• The legal authority of a binding principle derives from the contribution it makes to the best moral justification for a society’s legal practices considered as a whole.
• Dworkin: A legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1).
• The correct legal principle is the one that makes the law the moral best it can be.
• Dworkin: If we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule.
• Positivists concede that there are legal principles but argue that their authority as law can be explained in terms of the conventions contained in the rule of recognition.
• According to this view, legal principles are like legal rules in that both derive their authority under the rule of recognition from the official acts of courts and legislatures.
• Further, inclusive positivists argue that Dworkin’s account of principles is itself consistent with the pedigree thesis.
• Hart: This interpretative test seems not to be an alternative to a criterion provided by a rule of recognition, but only a complex ‘soft-positivist’ form of such a criterion identifying principles by their content not by their pedigree.
• A rule of recognition can incorporate content-based constraints on legal validity, even those rooted ultimately in morality.

c. The Semantic Sting

• In Law’s Empire, Dworkin distinguishes two kinds of disagreement legal practitioners can have about the law.
• Lawyers can agree on the criteria but disagree on whether those criteria are satisfied by a particular rule.
• Lawyers often agree on the facts about a rule’s creation but disagree on whether those facts are sufficient to endow the rule with legal authority; disagreement concerns the criteria for legal validity-which, according to positivism, are exhausted by the rule of recognition.
• Dworkin calls this second kind of disagreement theoretical disagreement about the law.
• Theoretical disagreement is inconsistent with the pedigree thesis because the pedigree thesis explains the concept of law in terms of shared criteria for creating, changing, and adjudicating law.
• If lawyers disagree about the criteria of legal validity, then the grounds of legal validity cannot be exhausted by the shared criteria contained in a rule of recognition.
• The semantic sting resembles one of Dworkin’s earlier criticisms of Hart’s pedigree thesis when Dworkin argues that this feature of Hart’s theory commits him to the claim that there cannot be any disagreement about the content of rule of recognition
• Jules Coleman responds that if the rule of recognition is a social rule, then Hart’s view implies there must be general agreement among the officials of a legal system about what standards constitute the rule of recognition, but it does not imply there cannot be disagreement as to what those standards require in any given instance
• Coleman distinguishes two kinds of disagreement practitioners can have about the rule of recognition: (1) disagreement about what standards constitute the rule of recognition; and (2) disagreement about what propositions satisfy those standards.
• Hart’s analysis of social rules implies that (1) is impossible.
• Despite its resemblance to this earlier criticism, Dworkin’s semantic sting argument takes aim at a deeper target.
• The semantic sting targets all so-called semantic theories of law that articulate the concept of law in terms of “shared rules … that set out criteria that supply the word’s meaning".
• At the root of the problem with semantic theories, on Dworkin’s view, is a flawed theory of what makes disagreement possible.
• Semantic theories mistakenly assume that meaningful disagreement is impossible unless we all accept and follow the same criteria for deciding when our claims are sound, even if we cannot state exactly, as a philosopher might hope to do, what these criteria are.
• On this flawed assumption, two people whose concepts of law differ cannot be disagreeing about the same thing.
• Despite his critisism, Dworkin concedes that se- mantic theories are consistent with theoretical disagreements about borderline or penumbral cases.
• Dworkin denies semantic theories are consistent with theo- retical disagreement about pivotal (or core) cases for if you do not count my copy of Moby-Dick as a book because in your view novels are not books, any disagreement is bound to be senseless.
• many difficult appellate cases like Riggs involve theoretical disagreement about pivotal cases and the judges and lawyers that argued about legislation and precedent disagreed about what makes a proposition of law true not just at the margin but in the core as well.
• Theoretical disagreement about pivotal cases like Riggs is inconsistent with semantic theories of law, on Dworkin’s view, because it shows that shared criteria do not exhaust the proper conditions for the application of the concept of law.
• Hart denies both that his theory is a semantic theory and that it assumes such an account of what makes disagreement possible but rather is a descriptive account of the distinctive features of law in general as a complex social phenomenon.
• Dworkin’s criticism fails because it mischaracterizes positivism as providing a criterial explanation of the concept of law.

5. References and Further Reading

• Austin, John, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press, 1977)
• Austin, John, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995)
• Bentham, Jeremy, Of Laws In General (London: Athlone Press, 1970)
• Blackstone, William, Commentaries on the Law of England (Chicago: The University of Chicago Press, 1979)
• Coleman, Jules, “Negative and Positive Positivism,” 11 Journal of Legal Studies 139 (1982)
• Dworkin, Ronald M., Law’s Empire (Cambridge: Harvard University Press, 1986)
• Dworkin, Ronald M., Taking Rights Seriously (Cambridge: Harvard University Press, 1977)
• Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)
• Fuller, Lon L., The Morality of Law, Revised Edition (New Haven: Yale University Press, 1969)
• Fuller, Lon L., “Positivism and Fidelity to Law–A Reply to Professor Hart,” 71 Harvard Law Review 630 (1958)
• Faber, Klaus, “Farewell to ‘Legal Positivism’: The Separation Thesis Unraveling,” in George, Robert P., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), 119-162
• George, Robert P., “Natural Law and Positive Law,” in George, Robert P., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), 321-334
• Hart, H.L.A., The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)
• Hart, H.L.A., “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,” reprinted in Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 123-144.
• Hart, H.L.A., “Book Review of The Morality of Law” 78 Harvard Law Review 1281 (1965)
• Hart, H.L.A., Essays on Bentham (Oxford: Clarendon Press, 1982)
• Hart, H.L.A., “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593 (1958)
• Himma, Kenneth E., “Judicial Discretion and the Concept of Law,” forthcoming in Oxford Journal of Legal Studies vol. 18, no. 1 (1999)
• Mackie, J.L., “The Third Theory of Law,” Philosophy & Public Affairs, vol. 7, no. 1 (Fall 1977)
• Moore, Michael, “Law as a Functional Kind,” in George, Robert P. (ed.), Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992), 188-242
• Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)
• Raz, Joseph, “Authority, Law and Morality,” The Monist, vol. 68, 295-324
• Raz, Joseph, “Legal Principles and the Limits of Law,” 81 Yale Law Review 823 (1972)
• Raz, Joseph, “Two Views of the Nature of the Theory of Law: A Partial Comparison,” Legal Theory, vol. 4, no. 3 (September 1998), 249-282
• Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)