Legal positivism is a position founded on the view that law and morality are two separate and distinct systems of thought. This position arises in opposition to the theory of natural law, which treats law as a regulatory system of moral principles. Legal positivism holds that law and morality serve different purposes. In other words, legal rules and moral principles are things unto themselves. Legal positivism holds that a law can be either moral or immoral; put differently, moral principles can correspond and contradict legal rules. In opposition to natural law theorists, this means that laws are not justified by moral criteria.
Austin is credited as the first legal positivist. Holding a fondness for Bentham and the principle of utility, Austin discerns between law and morality, and for establishing the criteria for laws that distinguishes them from moral principles. For Austin, a law is a command issued by a political superior to a political subordinate under the condition that disobedience warrants sanctions. Unpacking this criteria, laws may be either valid or invalid on the basis of their possessing these elements, and where a person has acted in accordance with the law can either be true or false.
Austin’s project was described as the development or autonomous analytic jurisprudence. In simpler terms, Austin undertook to study legal language and classify logical connections present in the most fundamental of its concepts. From this, Austin was able to infer the limits of the domain of law. Conclusively, Austin found, this domain is limited to the law itself.
Austin considered three kinds of directives human beings use and interact with. These include utility directives, positive morality, and positive law. Positive law may the simplest of these concepts to understand because it simply means valid law. Positive morality is similar to law, but lacks at least one element that makes law valid. Positive morality concerns social conventions and other forms of rules that people follow voluntarily. Perhaps insubordination to positive morality can create consequences that resemble sanction; distinctively, positive morality is not treated with the same level of seriousness or consequence as is positive law. Finally, utility directives are those that produce the greatest happiness for the greatest number. When Austin uses this principle he does so in every way that Jeremy Bentham did with one major exception. For Austin, the principle of utility can be understood as depicting the will of God. The principle of utility may replace morality in many practical ways for Austin. Austin thinks that it is okay to evaluate positive law based on the principle of utility. However, for Austin, positive law is not made invalid for its not conforming to the principle of utility.
Austin’s position requires looking at law and morality as two distinct subjects. His description of law removes all metaphysical hypotheses instilled by natural law theorists.
The Pedigree Test
For Austin, law can be either valid or invalid. This largely depends on whether statements of law are issued by a political superior to a political subordinate, and whether the statements are backed by sanctions. Hart, a legal positivist subsequent to Austin, looks the law making process, and specifically whether laws are adopted in accordance with law making procedures and legal jurisdiction. The pedigree test is often referred to as a combination of these ideas. It is applied to a retrospective view of law to establish whether current laws a arise from valid authority. This means that the pedigree test is a historical examination into the adoption of laws that examines continuity to establish validity.
Hart is a legal positivist following Austin. His ideas take much from Austin’s position but contain a few subtle nuances. He characterizes laws in two ways. First, he talks about primary laws, which broadly deal with how law attempts to regulate citizen conduct. Primary laws effectively deal with people, and when broken result in the issuing of punishment. Next, Hart deals with secondary laws that regulate how laws are made. Secondary laws are administrative, and when broken have the result of invalidating primary laws.
Hart’s philosophy of law elaborates on traditional legal positivism. One example of such an elaboration is the rule of recognition. The rule refers to how a legal system justifies laws. Hart asserts that a healthy legal system requires law to be examined by duty bound officials. This is referred to as the rule of recognition. The rule simply refers to the enforcement of analysis of law with secondary laws and jurisdictional considerations necessary to validate their legal authority. Hart believes it essential that a legal system contain dutiful officials whose job it is to challenge invalid law. When this process is actively performed, laws are elevated above a status of mere-commands. For Hart, the utilization of the rule of recognition brings integrity to law. Failing to execute this duty results in moral mistake for officials of a legal system.
Bentham and Raz
Jeremy Bentham is credited for terming the idea of utilitarianism. The idea holds that policy makers should seeks to create the greatest good for the greatest number. The idea creates a stark contrast to traditionally moralist thinkers like Thomas Aquinas, who would contend that the application of utilitarianism leads to moral pluralism. In other words, Aquinas would contend that moral concessions arise when performing utilitarian analysis of law and public policy. Rule focused moralists, like Aquinas, have generally been referred to as deontologists, and have been categorically placed in opposition to utilitarian thinkers historically. Features of the divide between these two ideologies is present between legal positivism and natural law theorists.
Bentham views law as man-made. He considers utilitarianism as a tool for analyzing law. Law should strive to bring the greatest good to the greatest number for Bentham. He thinks that morality is a unmanageable system for creating law.
On the other hand, Raz is a utilitarian. He generalizes utilitarian principles into the justification of law. Raz says that law is justified when it serves the public. For Raz, where the absence of law would not further the social betterment, the government should not interfere into the lives of citizens. Raz presents law as a coordination of society that seeks to adjust how individuals will act outside of the interests of society. His position exists within the broader and general aims of utilitarianism and eloquently adds to the project of Austin.
Controversy arises for Austin and Hart when applying their ideas to modern constitutionalism, both in England and Canada. The English approach to constitutionalism results in the use of convention as an authority. Convention presents difficulties for these legal positivists. Austin’s characterization of positive morality appears to be meant to include conventions. The problem is that, while the semantic use of the word convention may bring attention to this problem, the requirement that a political superior issues the authority to a political inferior may actually be met in English constitutionalism. This leaves the problem of whether sanctions exist for not following the conventions of the English constitution? In reality, both of these requirements can be debated. Ultimately, the conventional rules of English constitutionalism may actually be Hart’s rule of recognition in disguise.
Canadian Constitutionalism presents a different set of problems for legal positivists. The written element of the Canadian constitution removes concern about the convention; however, the very real problem of the passing of the constitution is an issue. A political democracy can pass a constitution, but the passing of the Canadian constitution was a democracy of provincial authorities. While English parliament may also have been involved, Austin’s requirement that a political superior issue the constitution to political inferiors may be tenuous. Perhaps a debate will swallow these concerns when attempting to analogize a democratic majority as a political authority. However, while the constitution itself contains remedies for disobedience, the adoption of the constitution was brought without sanctions. As obscure as it may appear, the fact that no penalty would result from a failure to adopt the Canadian constitution stands out as one way in which Austin’s position might question the validity of the Canadian constitution.
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