Introduction
Legal positivism is a school of thought in jurisprudence which argues that the existence and content of law depend on social facts and not on its moral merits. This central idea, often referred to as the 'separation thesis', distinguishes between what the law is and what the law ought to be. For a positivist, a law can be considered legally valid even if it is considered morally unjust. This approach contrasts sharply with natural law theory, which posits a necessary connection between law and morality. This essay will examine the core tenets of positivist law by exploring its development through two of its most significant figures: the classical positivism of John Austin and the more refined, modern positivism of H.L.A. Hart. It will then briefly consider some of the major criticisms that have been levelled against the positivist account of law before offering a concluding summary.
The Command Theory of John Austin
One of the earliest and most influential proponents of legal positivism in the English-speaking world was John Austin. In his work, The Province of Jurisprudence Determined (1832), Austin sought to provide a clear and scientific definition of 'positive law' – law 'strictly so called'. He developed what is now known as the 'command theory' of law. For Austin, a law is a command issued by a sovereign, and that command is backed by the threat of a sanction if it is not obeyed (Austin, 1832).
This theory can be broken down into three key components. First, there is the sovereign, which Austin defines as a determinate human superior who receives habitual obedience from the bulk of a given society, but who does not themselves habitually obey any other superior. In the context of the United Kingdom, this could be understood as the ‘Queen in Parliament’. Second, there is the command, which is an expression of a wish or desire by the sovereign that a person or group should act or refrain from acting in a certain way. Finally, there is the sanction, which is an evil or harm that will likely be incurred from the sovereign if the command is disobeyed. For Austin, the elements of command and sanction are interlinked; a command that is not accompanied by a credible threat of punishment is not a law.
Austin’s theory was radical for its time because it completely detached the definition of law from ideas of justice, reason, or divine will. Its strength lies in its simplicity and its ability to explain certain types of laws, particularly the rules of criminal law, which fit the model of a command backed by a threat (e.g., ‘do not steal, or you will be punished’). However, Austin's theory has been widely criticised for being overly simplistic and for failing to account for many features of a modern legal system. H.L.A. Hart, for instance, noted that many laws do not impose duties but instead confer powers on individuals, such as the laws governing the making of contracts, wills, or marriages (Hart, 2012). These laws are not commands backed by threats; they are facilitative and provide a framework for individuals to arrange their own affairs. Furthermore, the concept of a sovereign who is ‘unlimited’ and receives ‘habitual obedience’ struggles to explain the continuity of legal systems when one ruler succeeds another, and it does not fit well with modern constitutional democracies where legal and political power is divided and subject to legal limits (Wacks, 2020).
H.L.A. Hart’s System of Rules
H.L.A. Hart provided a much more sophisticated version of legal positivism in his seminal book, The Concept of Law (2012). While remaining a positivist in his commitment to the separation thesis, Hart moved away from Austin’s model of commands and sanctions, arguing instead that law is best understood as a system of rules. Hart’s central insight was to distinguish between two different types of rules: primary rules and secondary rules.
Primary rules are the duty-imposing rules that regulate behaviour. They tell people what they can and cannot do, such as the rules of criminal law or tort. A simple society, Hart argued, might be able to function with only primary rules, but it would face several problems. Firstly, there would be uncertainty about what the rules are and what their scope is. Secondly, the rules would be static, as there would be no formal mechanism to change them. Thirdly, the process for resolving disputes about whether a rule has been broken would be inefficient (Hart, 2012, pp. 92-93).
To solve these defects, Hart argued that a developed legal system introduces secondary rules. These are rules about the primary rules; they do not impose duties themselves but instead confer powers. There are three types of secondary rules.
- The Rule of Recognition: This is the most important secondary rule. It solves the problem of uncertainty by providing authoritative criteria for identifying valid primary rules in the system. For example, in the UK, the rule of recognition might include criteria such as 'what the Queen in Parliament enacts is law' and 'precedents set by higher courts are binding'. This is not a formal, written rule, but a social practice accepted by the officials of the legal system (judges, legislators) who use it to identify valid law.
- Rules of Change: These rules solve the problem of the static nature of primary rules by providing procedures for creating, amending, and repealing them. The laws governing parliamentary procedure are a clear example.
- Rules of Adjudication: These rules solve the problem of inefficiency by empowering certain individuals (judges) to make authoritative determinations about whether a primary rule has been broken and to prescribe remedies.
By viewing law as a union of primary and secondary rules, Hart was able to provide a much more complete picture of a legal system than Austin. His theory can account for power-conferring rules and better explains the continuity and persistence of law. Hart also introduced the idea of the 'internal aspect' of rules, arguing that for a legal system to exist, its officials must not just habitually obey the rules (as Austin suggested), but must accept the rule of recognition as a common standard for guiding and evaluating their own conduct and that of their peers (Hart, 2012).
Criticisms of Legal Positivism
Despite the sophistication of Hart's theory, legal positivism continues to face significant criticism, primarily from natural law theorists and others who reject the strict separation of law and morality. The classic challenge to positivism concerns fundamentally unjust laws. In the aftermath of the Second World War, positivism was criticised for apparently validating the laws of the Nazi regime. Positivists like Hart would argue that although these laws were morally reprehensible, they were, according to the rule of recognition of that system, legally valid. Hart’s position was that it is conceptually clearer to say, ‘This is law, but it is too wicked to be obeyed,’ than to adopt the natural law position that an unjust law is not a law at all (lex iniusta non est lex) (Hart, 1958). This was the focus of a famous debate between Hart and Lon Fuller, who argued that for a system to be a legal system, it must adhere to a minimum 'inner morality', such as being public, clear, and prospectively enacted. Fuller contended the Nazi system failed this test so badly that it did not qualify as a legal system (Fuller, 1958).
A different line of criticism was advanced by Ronald Dworkin. Dworkin argued that in deciding difficult cases where the legal rules are unclear or have run out (what Hart called the 'penumbra of doubt'), judges do not have the strong discretion to simply legislate as Hart suggested. Instead, Dworkin claimed that judges rely on legal ‘principles’ which are part of the law. These principles, such as ‘no one should profit from their own wrong’, are not identified by a rule of recognition but are derived from a moral reading of the society's legal and political practices (Dworkin, 1977). In cases like the American decision of Riggs v Palmer (1889) 115 NY 506, where a man who murdered his grandfather to inherit under his will was denied the inheritance, Dworkin argues the court was appealing to a pre-existing legal principle, thereby demonstrating that law and morality are not as separate as positivists claim.
Conclusion
In conclusion, legal positivism offers a powerful and analytical framework for understanding the nature of law. Its central principle, the separation of law's validity from its moral content, provides a clear method for identifying the law that exists within a given society. The progression from John Austin’s simple ‘command theory’ to H.L.A. Hart’s more nuanced ‘system of rules’ demonstrates the evolution of positivist thought to account for the complexities of modern legal systems. While Austin’s theory provided a foundational, if flawed, starting point, Hart’s concept of law as a union of primary and secondary rules, unified by a rule of recognition, remains a dominant account in modern jurisprudence. However, positivism is not without its challenges. The enduring critiques from natural law theory concerning wicked legal systems, and the arguments of theorists like Dworkin regarding the role of moral principles in judicial decision-making, ensure that the relationship between law and morality remains a central and unresolved question in legal philosophy.
References
Austin, J. (1832) The Province of Jurisprudence Determined. John Murray.
Dworkin, R. (1977) Taking Rights Seriously. Duckworth.
Fuller, L. L. (1958) ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, Harvard Law Review, 71(4), pp. 630-672.
Hart, H. L. A. (1958) ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, 71(4), pp. 593-629.
Hart, H. L. A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.
