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| title | chunk | source | category | tags | date_saved | instance |
|---|---|---|---|---|---|---|
| Jurisprudence | 5/8 | https://en.wikipedia.org/wiki/Jurisprudence | reference | science, encyclopedia | 2026-05-05T03:58:04.446884+00:00 | kb-cron |
Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality. Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values. Legal positivists who argue against the incorporation of moral values to explain law's validity are labeled exclusive (or hard) legal positivists. Joseph Raz's legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive (or soft) legal positivists. The legal positivist theories of H. L. A. Hart and Jules Coleman are examples of inclusive legal positivism. Legal positivism has traditionally been associated with three doctrines: the pedigree thesis, the separability thesis, and the discretion thesis. The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that the fact that the directive was issued by the proper official within a legitimate government, for example, determines the directive's legal validity—not its moral or practical merits. The separability thesis states that law is conceptually distinct from morality. While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so." Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably Joseph Raz, go further than the standard thesis and deny that morality can be a part of law at all. The discretion thesis holds that judges create new law when they are given discretion to adjudicate cases in which existing law underdetermines the result.
==== Thomas Hobbes ====
Hobbes was a social contractarian and believed that the law had people's tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. In Leviathan, Hobbes argues that without an ordered society, life would be "solitary, poor, nasty, brutish and short." It is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.
==== Bentham and Austin ====
John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law as it is. Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." For Austin and Bentham, a society is governed by a sovereign who has de facto authority. Through the sovereign's authority come laws, which, for Austin and Bentham, are commands backed by sanctions for non-compliance. Along with Hume, Bentham was an early and staunch supporter of the utilitarian concept, an avid prison reformer, an advocate for democracy, and a firm atheist. Bentham's views about law and jurisprudence were popularized by his student John Austin. Austin was the first chair of law at the new University of London, from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". H. L. A. Hart criticized Austin and Bentham's early legal positivism because the command theory failed to account for an individual's compliance with the law.
==== Hans Kelsen ====
Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common law countries. His Pure Theory of Law describes law as "binding norms" while simultaneously refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a 'basic norm' (Grundnorm)—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system, beginning with constitutional law, are understood to derive their authority or the extent to which they are binding. Kelsen contends that the extent to which legal norms are binding—their specifically "legal" character—can be understood without ultimately tracing it to some suprahuman source such as God, personified Nature, or—of great importance in his time—a personified State or Nation.
==== H. L. A. Hart ====