Imagine a powerful sovereign who issues commands to his subjects. They are under a duty to comply with his wishes. The notion of law as a command lies at the heart of classical legal positivism as espoused by its two great protagonists, Jeremy Bentham and John Austin. Modern legal positivists adopt a considerably more sophisticated approach to the concept of law, but, like their distinguished predecessors, they deny the relationship proposed by natural law, outlined in the previous chapter, between law and morals. The claim of natural lawyers that law consists of a series of propositions derived from nature through a process of reasoning is strongly contested by legal positivists. This chapter describes the essential elements of this important legal theory.
The term ‘positivism’ derives from the Latin positum, which refers to the law as it is laid down or posited. Broadly speaking, the core of legal positivism is the view that the validity of any law can be traced to an objectively verifiable source. Put simply, legal positivism, like scientific positivism, rejects the view – held by natural lawyers – that law exists independently from human enactment. As will become clear in this chapter, the early legal positivism of Bentham and Austin found the origin of law in the command of a sovereign. H. L. A. Hart looks to a rule of recognition that distinguishes law from other social rules. Hans Kelsen identifies a basic norm that validates the constitution. Legal positivists also often claim that…
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Author(s): Raymond Wacks