legal positivism

Legal positivism holds that the existence and content of law depend on social facts (who made it and how), not on its moral merit. Bentham and Austin defined law as the command of a sovereign backed by sanction; Kelsen built a hierarchy of norms resting on a grundnorm; H.L.A. Hart explained law as a union of primary rules of obligation and secondary rules, with a rule of recognition identifying valid law.

Positivists do not say law should be obeyed whatever its content; they say the question “is it law?” is different from “is it good law?”. The main rival is natural law theory. The positivist school is also called the analytical school.

Example

For Austin’s legal positivism, international law was only “positive morality” because there was no sovereign to command it.

See also

natural law · pure theory of law · grundnorm · sovereignty

Read more in the study notes

• Theories of human rights (Human Rights Law and Practice)
• Legislation as a source of law: supreme and subordinate legislation, other sources, and social welfare (Judicial and Legislative Process)
• The natural law school (Jurisprudence)
• The imperative theory: law as the command of the sovereign (Jurisprudence)
• Legal realism: American and Scandinavian (Jurisprudence)
• Custom as a source of law, and the three sources compared (Jurisprudence)