Legal Positivism

Legal positivism is a form of philosophy of law or jurisprudence. It looks at the outside appearance of the law rather than looking at its content in order to define it. Positivism can be seen as a response to Natural law, the idea that law is linked with morality and the following of a higher law whether this is embodied by a philosopher king or leader (plato) or though finding the greater good (aristotle) or the acknowledgement of a higher being such as God (judeo-christians). Bentham was quoted to say that natural law was 'nonsence on stilts'. Positivism divorces the law from morality saying that we should look at what the law is and not search for what it ought to be. Morality may influence the law but it is non-essential and law is man-made.

There are two strands of positivism; classical and modern. Philosophers of the classical idea of legal positivism include Bentham, Austin and Kelsen. Modern positivists include Hart and his pupil, Raz.

Naturally the theory behind modern positivism appears to hold sway in society today. Hart, who was deeply influenced by Kelsen's ideas of positivism departed slightly from his theories claiming that classical positivism was too rigid and harsh. Kelsen saw the law as a science. It is logical and just exists rationally. Justice and morality on the other hand are based on preferences and values and are therefore irrational. Law and morality are not linked. Hart felt that Kelsen's theory did not account for society and was an extreme example of positivism, he called it formalism. Instead, Hart acknowledged that there was some kind of obligatory power but also room for philosophy of language. Kelsen's idea that x must follow y when considering sanctions was correct but Hart also acknowledged society's hostility as there is always a reason or justification for law.

Hart also established the the idea between primary and secondary legal rules whereby primary rules govern conduct such as criminal law and secondary rules include procedural methods by which primary rules are enforced. There are three kinds of secondary rules; Rules of Recognition, Rules of Change and Rules of Adjudication.

Hart's modern positivism creates a balance between law and morality and justice without the legal system appeared too rigid to change or delicate and at risk from falling into chaos at the loss of logical structure.

Its all a little bit complicated if you think about it too much all at once!

F.L.P