Positivism

Abstract

Legal positivism means different things to different scholars, and traditions of positivism differ among legal scholarship of municipal legal systems, international law, and theorists/philosophers of law. Therefore this article will separate legal theoretical writings on positivism from international legal scholarship on the topic. The differences between positivists are so considerable that it would be moot to try to impose a lowest common denominator or a definition of positivism. However, we can identify some typical positions held by legal positivists: (1) Either the identification or the method of creation of rules of law (legal norms) is based on “sources,” that is, on form, rather than on the content of the rule alone. (2) The positive law as object of scholarship is, in the original Latin sense, positus. It is somehow “put,” made more than fictive imaginings, for example, by social convention or by having a real act of will as its basis. (3) Positivism is also identified by the “separability thesis” (Hart 1957–1958, cited under Modern Approaches and Primary Texts): law can be separated from the realm of morals and can exist, and be valid law, independently from its moral value. This is sometimes also expressed by positivists in espousing a separation between the law in force and the law that is desirable (lex lata v. lex ferenda). (4) Equally, positivism can be defined by its traditional antipathy to the possibility or cognizability of “natural law” as a realm of absolute norms above positive law and controlling it. (5) With theses (3) and (4), positivists, to a greater or lesser degree, espouse a form of value relativism: no values (rules, norms, precepts, standards) are absolute and, by their very nature or content, are so much “better” than other values that they must necessarily exist and trump all others. (6) Positivists may also espouse the categorical distinction between the real world (or statements about what “is”) and the world of values (or statements about what “ought to be”), which is sometimes known as the is-ought dichotomy. Hans Kelsen is famous for the maxim “no is from ought, no ought from is alone.” However, the closer a positivist thesis is to legal realism, the less likely the scholar will separate strictly between “is” and “ought.” A scholar does not have to incorporate all of these to be called a positivist (particularly if writing before approximately 1945), but some of these elements will probably be present in all positivist writings.