The definition of legal positivism is that the thesis depends on the social
facts rather than the merits. It has had a long history and a broad influence
on society ever since its inception. The theory which was fully developed by
John Austin in the 18th century can date back its antecedents in ancient
His idea of legal positivism draws heavily from Bentham’s work which was a two-fold view that:
- both law and morality are separate from each other; and
- all human made laws can be traced back to human lawmakers.
Though the definition of legal positivism that was set by John Austin was widely
influential from the late nineteenth century till the early twentieth century,
it is now seen as an overly simplistic understanding. The modern doctrines roots
lie in the works of HLA Hart and Joseph Raz who have revised the position of
legal positivism from the thinkers Thomas Hobbes and David Hume.
Hart has used Austin’s definition, pointed out the flaws present in it and then
worked upon it.
The following are the points that needed change:
- The legal systems also include rules that do not impose sanctions, some
empower specified people to do certain things or specify ways in which legal
rules can be identified or changed. Making wills are one example of a rule
which does not impose a sanction but rather empowers the beneficiary to gain
certain property and the officials to oversee it
- It is difficult to identify a sovereign as defined by Austin as the
law making power is dispersed with different bodies doing different
- If legal duties are understood in terms of obedience to a determinate
sovereign then it does not explain why laws still remain in force even when
there is a change in government.
- All threats do not give rise to obligations. If they did then there
would have been no difference between a gunman’s threat, where he makes you
choose between your money and your life, and an ordinary piece of
Joseph Raz has played an important role in continuing Hart’s work. The pupil of
Hart, Raz edited the second edition of Hart’s book The Concept of Law . Raz
subscribes to the source thesis which believes that the existence and content of
law can be determined without any moral argument and on the reference to its
sources. Raz being a hard positivist has argued that the moral criteria of
legality is precluded by the concept of authority.
However there has been a renewal in objections regarding legal positivism in the
past few decades. The distinguished thinker, Ronald Dworkin, has compiled all
the criticisms in his book Taking Rights Seriously
. His work has focused on
the work of Hart and has been a criticism of it. Other thinkers, including Lon
Fuller, have also questioned the validity of legal positivism and its methods.
However they have not properly displayed an understanding of legal positivism.
This paper aims to clarify the stance taken by legal positivism while focusing
on the links between law and morality and looking at the works of various
philosophers like HLA Hart and Ronald Dworkin.
Links between Law and Morality
Law generates its own discourse of morality. It generates a legal point of view
about morality. According to the positivists legality operates at a distance
from morality. HLA Hart in his paper titled Positivism and the Separation of
Law and Morals  brought in the idea of law being kept separate from morals.
However by this he did not mean that law and morality should be separated.
Rather what he meant was that morality sets ideals for law and the law has to
live up to those ideals.
Dworkin in his book titled, Law’s Empire took an example of the case of Riggs
 In this case Francis B. Palmer had made his will in which he had
given a portion of his legacy to his two daughters, Mrs. Riggs and Mrs. Preston
and the remaining portion to Elmer Palmer to be taken care of by his mother
Susan Palmer until he reaches the legal age. Elmer feared that Francis B. Palmer
would change the will and so he poisoned him till death.
A provision was there to convict Elmer under criminal law; however, there was no
provision which would regulate his claim to the legacy for taking part in this
criminal activity. The court declined to give the defendant his gift under the
will as it follows the principle of no man may profit from his own wrong
. Dworkin used this case as
an example to show that in the current case the judge did not rely on legal
rules, he applied a principle and did not strictly follow the law.
further argues that judges should invoke legal principles that do not derive
their authority from any official act of promulgation. He says that law does not
just consist of rules; it includes certain moral principles as well which have
weightage. This is one significant difference between rules and principles. He
theorizes that principles lack what rules should have and rules cover what
principles should have.
The Dworkin-Hart debate concerns the clash between two different models of law
where one determines law based on social facts alone while the other includes
moral facts. However in the article written by Brian Leiter titled, Beyond the
Hart-Dworkin Debate he proves that the debate is over. The debate which was
the core organizing role in the judicial curriculum of the twentieth century
does not make much sense in the twenty-first century as there is a clear winner
of the debate. Leiter disproves all of Dworkin’s claims but one against Hart.
Legal Positivism and Legal Formalism: The Difference
There are three assumptions that have been made about positivism throughout the
years. The first attribution to legal positivism is the assumption that law is
determinate; there is always a defined limit under which it acts. The second
attribution to legal positivism is the amorality of legal interpretation; that
law is morally neutral. People often want to see their moral codes being
enforced as law. The third and final attribution to legal positivism is judicial
However, what should be known is that these are the three central features of
legal formalism, not legal positivism. Legal positivism has been misconstrued
with legal formalism as of lately. This is due to Lon Fuller and his article
against legal positivism which may have confused an entire generation and
poisoned their minds making them think that positivism had a role in what
happened in Nazi Germany and the morally abhorrent deeds of the judges.
The Hart-Fuller debate revolves around law and morality and the example of Nazi
Germany. Hart stands by the thesis that there is no necessary relationship
between a legal system and the idea of morality or justice. Fuller on the other
hand stands by his thesis that law and morality cannot be easily distinguished.
However, both of them do agree on the fact that immoral and unjust systems are
short-lived and most likely to be unstable. A repressive regime lacks morality
and justice; however, when a repressive regime falls, the system falls with it
What should be understood is that legal formalism and legal positivism are two
distinct theories. Legal positivism is more than a theory, it is more of a
tradition of thoughts as there have been various thinkers who have contributed
to this system throughout centuries.
The constitutive features of legal positivism are:
- An insight into legal positivism deals with what is called the social
fact thesis. What this thesis says is that law is a communitarian human
artefact; it is a social institution, a social phenomenon which is based on
social facts. There are certain social rules that determine and create the
law. Social rejection invalidates the law making procedures and the laws
- Another insight into legal positivism deals with the conventionality
thesis. This thesis says that the law is created and preserved through
convention. Law is primarily a matter of conduct and practice.
- The third insight into legal positivism is the separability thesis
of law. This thesis states that the law is a response to moral problems of the
community. The validity of a law cannot be challenged on moral grounds. Law and
morality are separate domains with the only necessary linkage being that law is
a termination of moral problems.
A positivistic theory of law does not claim that law is determinate. The Hartian
core-penumbra theory is an example of this. While there has been criticism
against legal positivism saying that it fails to justify the process, the rules
are based on social norms and hence, social rejection would invalidate it. For
the law to be valid it must have the correct pedigree: the sovereign must follow
all the established procedures.
To assess the validity of such laws two question
have to be answered in the positive:
- Whether the law created by the correct authority; and
- Whether the correct authority followed the appropriate procedures.
Legal positivism has been misunderstood and been shown in the limelight due to
its switch in attributes with Legal formalism. To understand what legal
positivism is the example of homosexuality and their position in society can be
seen. As per legal positivism homosexuality may be legally wrong in a given
system but it is wrong only legally. There are other external factors such as
morality in which it is not considered wrong.
However, as seen previously, it is
still criticised on this issue. Legal positivism is a normative theory of law
and not a moral theory of law as it does not give a complete account of
morality. The legal point of view is a perspective where those who are
authorized by the norms of legal institutions have moral legitimacy of their own
and when they act in accordance to those norms then the action of authority
is intra vires and they generate a moral obligation to obey. One has to always
remember that the legal point of view, legal authority, always purports or
claims to represent the moral point of view even when in reality it fails to do
Legal Positivism is still arguably the dominant theory of the nature of law in
jurisprudence or analytical legal philosophy. Legal positivists have responded
to both Ronald Dworkin and Lon Fuller’s against legal positivism. Legal
positivism is still very active as new thinkers with different theories have
Scott Shapiro, a legal positivist and professor of law and professor of
philosophy at Yale Law School, builds upon Hart’s theory and introduces his own
concept of the Planning Theory of Law. In this theory Shapiro states that
laws are plans as they structure activity so that the participants work together
and thereby achieve goods and values that would otherwise be unattainable.
Justice Antonin Scalia is another legal positivist who was an Associate Judge of
the Supreme Court of the United States of America from 1986 until his death in
He builds upon the interpretation of Hart’s Rule of Recognition. Justice Scalia
builds on the rule of recognition and in his book, A Matter of
A text should not be construed strictly, and it should
not be construed leniently; it should be construed reasonably, to contain all
that it fairly means.
It is important for people to have different judicial philosophies. As Justice
Scalia is no more, his philosophy will be debated upon and a successor will be
chosen. It is crucial to have diversity in the area of law as it is only through
diversity of opinions that debates occur which sparks creativity and
controversy. Both of these are needed to move forward as a society. Thus,
legal positivism is a necessary theory of law and it should be properly
Written By: Harsh Mahaseth
- Legal Positivism, Stanford Encyclodpedia of Philosophy, Jan 3,
- Finnis, John, The Truth in Legal Positivism, The Autonomy of Law, ed.
Robert P. George. Oxford: Clarendon Press, 1996, Pg. 195-214.
- H.L.A. Hart, The Concept of Law, Clarendon Press, 1961.
- Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass.: Harvard
University Press, 1977. Pg. 295.
- H.L.A. Hart, Positivism and the Separation of Law and Morals, Harvard
Law Review, Volume 71, No.7, 1958.
- Riggs v. Palmer, 115 N.Y. 506 (1889)
- Ronald Dworkin, Law’s Empire, The Belknap Press of Harvard University
Press Cambridge, Massachusetts, London, England, 1986.
- Brian Leiter, The Radicalism of Legal Positivism, Guild Practitioner,
March 8, 2010.
- Scott J. Shapiro, Legality, Belknap Press, 2013.
- Antonin Scalia, Federal Courts and the Law, A Matter Of Interpretation,
Princeton University, 1997.
- G. Todd Butler, A Matter of Positivism: Evaluating the Legal Philosophy
of Justice Antonin Scalia under the Framework Set Forth by H.L.A. Hart, The
Holy Cross Journal of Law and Public Policy, Volume XII, 2008.
is an Assistant Lecturer at Jindal Global Law School, and a Research Analyst at the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University.