I. For contemporary legal positivists, the rule of law rests on three principles.

1.      the explicitness of its formulation,

2.      the enforceability of its strictures, and

3.      its ability to adapt legislatively to new situations and the consequences of earlier enactments (experimentalism).

n       Conflicts between (3) and (1) + (2) leads to 'legal realism'

n       Jules Coleman also stresses that legal positivism is social constructivist and morally neutral (‘separability thesis’)

o        Separability amounts to recognizing a strong public/private sphere distinction, unlike the German legal tradition, in which law either reforms private morals (nation-building) or amplifies them (Sittlichkeit)

o        Unsurprisingly, leading contemporary opponents of the Separability thesis, such as Dworkin, see judicial interpretation as a nation-building exercise


II. The classical roots of legal positivism:

·         Both Plato and Thucydides saw that the uncontrolled exercise of reason – by the Sophists and Socrates -- leads to pointless aggression that eventually turns into civil war

·         The lesson of the Peloponnesian Wars is that reason needs to be harnessed to absolute power and not dispersed to be used opportunistically: Plato’s philosopher-kings

·         Thomas Hobbes (Leviathan, 1651), who translated Thucydides into English in the 17th c., provides the link between the Greeks and modern positivism

·         Hobbes presumes that people don't have fixed interests, only that they fear death and hence avoid pain when possible: reflects experience of English civil war.

·         Followers of Hobbes in the Enlightenment have tried to used ‘Reason’ or ‘Science’ as basis for just government, since civil wars were mainly about religious differences, whereas Reason and Science potentially had the power to rise above those differences and claim everyone’s allegiance.

·         This turns out to be a signature theme in the history of positivism, especially once it is explicitly formulated in 1830 by Auguste Comte, the founder of sociology, who influenced John Stuart Mill.

·         Hobbes' reduction of covenant to contract meant that there was a right to revolt if the rulers did not keep the peace

·         Unlike tribal justice, it is not sufficient to award damages to aggrieved parties.

·         Hobbes – and positivism more generally -- represents one half of the social contract tradition: It presupposes that before law, society was chaotic; law raises humanity from its animal existence.

·         The other tradition – associated with Rousseau and the early Marx – presupposes that law actually creates divisions between people that had not existed when people lived in a harmonious self-organised state. 

·         The ultimate test of the validity of legal positivism is whether the presence of explicit rules deters undesirable behaviour. Or rather, the law makes crime important or perhaps even encourage it to be recognized.

·         E.g. labeling conceptions of deviance in sociology: no crimes without laws

·         Moreover, given the people who continue to commit crimes even with laws against them, one wonders whether that number would increase without the laws (e.g. that number of murders would go up without laws against murder): If not, then law does not act as a deterrent, as the positivists thought



III. Confusions in the history of legal positivism

1.      For Hobbes, the law is justified because it alone can guarantee everyone’s well-being so that each can pursue his/her interests in ways that do not interfere with others.

·         In other words, the difference between law and morality is really between a ‘higher’ (public) morality, which involves obeying the sovereign, and a ‘lower’ (private) morality, which involves pursuing self-interest (which Hobbes equates with conscience)

·         This means that positive law was designed to be a replacement of natural law, since it would largely serve the same functions. This is why Hobbes was vilified by religious leaders in his day.

·         Note that legal positivism presupposes that law is the only solution to the problem of disorder – and hence it’s worth whatever additional problems it causes (e.g. the social construction of crime and deviance that would not have existed prior to the law).

·         In this respect, legal positivism is antithetical to anarchism, which holds that the law is the source of social disorder as it creates divisions within society (this view comes from Rousseau’s theory of alienation, which was influential on the younger Marx)

2.      This sense of positive law was pursued in the 19th and 20th century in terms of establishing formal procedures for administering international justice

·         E.g. Hans Kelsen was involved with drafting the League of Nations charter. However, this failed because if one treats international law as a literal social contract, then member states will want escape clauses and guarantees that force will not be used unless a vast majority of states agree to it: In effect, no course of action could be successfully prosecuted

·         We see a remnant of the problem in the UN Security Council's attempt to act as one body

·         However, the alternative is the Nuremberg Trial and the Milosevic trial: i.e. national jurisdiction is usurped by more powerful invaders, and 'crimes against humanity' is defined was the victor's sense of justice

·         Interestingly, legal positivism flourished in the late 19th and early 20th century when there were many conflicting moral claims among states of roughly equal size. It becomes less popular as the US becomes the dominant superpower and a moral consensus appears to gather around the law (e.g. Dworkin)

3.      Starting with Herbert Hart, the Hobbesian distinction between law and morality was distorted, so that law/morality came to be seen as analogous with is/ought.

·         This occurs in his critique of John Austin, who holds Hobbes’ view.

·         Among the many important consequences of this distortion is that the Hobbesian right to revolution is no longer a part of legal positivism because law is simply treated as a fact, not something based on the rational consent of the governed

·         Hart treats objections to the law as completely outside the normative range of the law, when in fact people consider their allegiance to the law as a negotiated settlement that may be revoked by appealing to the principles that had to be restrained in order for agreement to be reached in the first place.

·         This is why Hobbes and Austin held that the law had to be backed by sanctions – because people’s allegiance is always conditional to the overall achievement of their ends.

4.      This reflects two developments, one philosophical and the other political:

·         The philosophy of the later Wittgenstein stressed the status of norms as facts in the societies where they operate.

·         Hart wrote toward the end of British imperialism, in which colonial governance depended on respecting the natives’ local customs, even if the imperialists could not fathom them.

5.      These confusions are compounded by the sorts of objections that anti-positivists like Dworkin raise, namely, that law are enforceable only because – and insofar as – they reflect some underlying moral position that is not separable from the law in the minds of either citizens or judges.

·         The problem with these objections is that they share Hart’s presupposition that the law should account for what people normally do (i.e. that even moral principles should be seen as a kind of meta-rule). However, according to Hobbes, the law is the best suboptimal outcome to enable everyone to get some of what they want. In other words, the law is designed to counteract our ‘natural wishes’.


IV. Legal formalism in relation to legal positivism

n       Virtually the same view, except that formalism takes the judge’s standpoint, whereas positivism takes the legislator’s standpoint

n       However, this has significant consequences in terms of justification of the law

o        Formalists stress the internal coherence of the law, whereas positivists stress its ultimate source (Hobbes’ sovereign or Hart’s rule of recognition).

o        A good example of formalism in action is how the US Supreme Court dealt with the vote count in Florida during the 2000 presidential election. The Court was more concerned about the precedent the decision would set that in future cases of the same kind rather than whether it justice to the actual litigant (i.e. Al Gore). Basically the Court did not want to make it easier to have votes recounted whenever anyone has a grievance about the outcome.

n       Legal formalists try to codify the judge’s conscience in terms of Aristotle’s distinction between commutative and distributive justice (Weinrib)

o        Commutative justice = the convicted defendant is solely responsible for redressing the damage done to the plaintiff

o        Distributive justice = all of society is potentially implicated in redressing any damages

n       The difference between commutative and distributive justice depends on the terms in which people are thought to have consented to the legal system.

o        Commutative = Everyone equally consented and have benefited sufficiently equally

o        Distributive = Not everyone has consented to the same extent and have not benefited to the same extent

n       This would justify penalizing a poor person less than a rich one for committing the same crime, even if this upsets the victims.

n       Legal formalism and positivism claim to go back to the most basic function of the law, which is to provide an accountable mechanism for dispute resolution

o        However, these movements are open to the criticism of being geared toward expert specialization (professional lawyers) rather than an ordinary citizen's sense of natural justice (which tends to get dismissed as prejudice).

n       Note that there are two senses in which positivism and formalism are concerned with ‘arbitrariness’ in the law:

o        Bad arbitrariness = law does not involve the consent of the governed (e.g. common law, natural law, church law – according to Jeremy Bentham)

o        Good arbitrariness = positive law binds only because it has the consent of the governed – not because of any transcendental significance (e.g. contract law)


V. Indeterminacy

·         Three doctrines relating to this concept need to be distinguished:

o        Radical indeterminacy: The idea that judicial decisions are not constrained by the law in any specific way. Rather, the law is just post hoc rhetoric to justify whatever the judge wants to do.

§         This is associated with some radical forms of deconstruction, and also the ‘decisionistic’ perspective of Carl Schmitt (law as a cover for power politics)

o        Underdetermination: The idea that any judicial decision can be justified by appealing to any of a number of different precedents, depending on the aspects of the case stressed.

§         This is associated with Wittgenstein’s views of rule following – i.e. a set of cases can be interpreted as governed by many different rules, and hence past practice cannot determine future practice

o        Epiphenomenalism: The idea that legal decisions may be indeed predictable (and hence determinate) but for reasons unrelated to the law itself: e.g. you can predict a judge’s behaviour by looking at his political background, etc.

§         This is associated with legal realism and Marxism.

·         Precedents for recognizing indeterminacy in the law can be found in both natural law theory (appeal to conscience) and legal positivism (appeal to judicial discretion)

·         A recent version of indeterminacy is ‘performativity’, which focuses on the fact that a legal category can never be defined in a way that includes all the intended cases and exclude all the unintended ones:

o        e.g. women may 'pass' as men in certain legal situations, and vice versa; sometimes women and children may not 'pass' as full-fledged human beings.