Towards Classical Legal Positivism

Abstract

This essay rethinks the history and understanding of the debate between positivism and natural law. It does so by distinguishing between classical positivism, represented by the work of Thomas Hobbes and Jeremy Bentham, and contemporary positivism, the one familiar from self-styled positivists works in the last fifty years. I argue that the difference between the two is that classical positivism sought to provide a theory of law within a broader account of nature (including human nature), whereas what is characteristic of contemporary positivism is its rejection of this approach. This distinction is valuable for understanding the historical path of jurisprudence as the approach of the classical positivists is similar to the one found in the work of many natural lawyers, both classical and contemporary. What separates classical positivists from the natural lawyers is thus not - contrary to claims by contemporary positivists - that the classical positivist were the first to argue that legal validity does not depend on the moral soundness of a norm. Rather, they disagreed on the correct account of nature and human nature. Nonetheless, both classical positivism and natural law are similar in seeking to place a theory of law within a broader theoretical perspective. The difference is significant both for understanding the views of Bentham or Hobbes (neither of which was particularly interested in identifying tests of validity) but also for suggesting that the future of theory lies in returning to the views of the classical positivists and abandoning the approach that has dominated jurisprudence, and positivism in particular, since Hart's Concept of Law.