Legal Positivism

Abstract

The central tenet of legal positivism is that laws are enacted, or “posited,” by human beings. In other words, law derives its authority as such from political and social practices rather than existing “naturally” (independently of such practices). This core idea, that law is socially constructed, has a long and deep pedigree. Leading proponents of legal positivism have included Jeremy Bentham, John Austin, Hans Kelsen, H. L. A. Hart, Joseph Raz, and Leslie Green. Its most prominent critics have included Lon Fuller and Ronald Dworkin. Legal positivism captures well some features of legal systems – especially the ways that constitutions, statutes, and other laws are products of human agency. Even so, it has been highly contested whether the central tenets of this school of thought are adequate to account fully for problems of legal identity and authority, relationships between law and morality, and other matters of legal theory.