Legal positivism is a theory that understands law as a kind of institution.
It is based on the idea that the validity of a legal system is determined by a social rule
called the rule of recognition. This rule states that a norm is valid because of its source,
not its merit. Legal positivism has been influential in Western legal theory and practice,
providing predictability and coherence to various areas of law, from constitutionalism to
contracts.
Kramer’s Theory of Legal Positivism
In this paper, the authors provide an account and a critical examination of Matthew
Kramer's theory of legal positivism, arguing that the theory appears to be flawed insofar
as it combines incompatible items, such as the separation thesis, robust incorporationism
and the proper notion of an existing legal system.
Analytical positivism, advocated by H.L.A. Hart and Hans Kelsen, focuses on analysing key
legal concepts such as "law," "(legal) right," "(legal) duty," and "legal validity" [1].
Hart, in particular, presented five positions of legal positivists:
1) laws are commands of the sovereign backed by coercive force; "Laws are commands of
the sovereign backed by coercive force" means that laws are rules or directives issued by
the governing authority, and they are enforced through the use of coercion or the threat
of punishment.
The idea is that the state has the power to impose obligations on individuals and can use
force to ensure compliance with those obligations.
This perspective challenges the notion that laws are effective solely because individuals
internalize them and voluntarily obey.
Instead, it emphasizes the role of coercion in maintaining law and order in society. The
concept of coercion is seen as essential to understanding the nature and effectiveness of
law.
2) There is no necessary connection between laws and morals; the existence of laws does
not imply a moral justification for those laws.
This statement suggests that laws can be created and enforced without considering
moral principles or values. It implies that the legal system operates independently from
moral judgments and that the legitimacy of a law is not dependent on its moral
correctness.
This perspective is influenced by the philosophy of legal positivism, which emphasizes
the separation of law and morality. Legal positivists argue that laws are social constructs
created by human authorities and do not necessarily reflect objective moral truths.
Therefore, according to this viewpoint, the validity and enforceability of laws are
determined by their compliance with legal rules and procedures rather than their moral
content.
3) Analysing the meaning of legal concepts is distinct from historical and sociological
inquiries; Hart believes that analysing the meaning of legal concepts requires a distinct
philosophical approach rather than relying solely on historical or sociological
investigations
4) A legal system is a closed logical system with deducible legal decisions; Hart's
perspective suggests that the legal system is based on a logical structure where legal
decisions can be derived from the existing rules and principles within the system.
5) Moral judgments of law cannot be defended- He argues that if the thesis of moral
objectivity is true, then determining what the law requires may depend on moral
arguments. However, if the thesis is false, then when the law refers to morality, it only
makes recommendations to the courts to make law in accordance with morality.
While Hart called for a separation of law and morals, he acknowledged some moral
content in law, proposing the "minimum content of natural law" based on truisms about
human nature.
However, this theory has been criticized for being merely prohibitive and not providing
positive inducements to do what is right. Additionally, it only addresses primary rules
and does not consider special circumstances where actions like taking a life or depriving
property may be permissible or mandatory
Hans Kelsen's Pure Theory of Law aimed to purify law by excluding elements that are not
strictly law, such as moral judgments, political biases, and sociological conclusions.
He rejected natural law theory because it confused law with morality and believed that
law should be defined as it is, not as it ought to be.
According to Kelsen, law consists of norms, which are regulations that establish how
individuals should behave. These norms cannot be derived from facts or morality, but
from other norms.
Kelsen argued that the derivation of norms must come to an end at some point, and this
endpoint is the foundational norm or the basic norm.
The legal system is seen as a hierarchy of norms, with the basic norm at the top, serving
as the keystone of the entire legal structure
Critique of Legal Positivism: it is impossible for lawyers to avoid resorting to moral
considerations when representing clients, as the law may not provide guidance in certain
situations
References:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3345159
https://typeset.io/papers/internal-legal-positivism-refined-2n8f5pl6
