What Is Legal Positivism?
Legal positivism is the view that whatever is posited as law is truly law. To help understand this, consider first the Nuremberg Trials, in which Nazi war criminals were prosecuted. The common defense for the Nazis was that they were obeying the law, and laws are supposed to be obeyed. So they obeyed them, and you can't blame them for doing what they were supposed to do.
As Martin Luther King Jr. reminds us in his Letter From A Birmingham Jail, what they did was legal. That doesn't seem to be contested. So, if we wish to prosecute Nazis, on what grounds should we do it? Do we want to say that laws do not need to be obeyed? That seems like too much to say. I like it when everyone obeys the law and drives on the right side of the road. It keeps me, and everyone else, safe. So laws do need to be obeyed. Does Nazi law count as real law then? According to legal positivism, yes it does. Legal positivists will disagree on what is the mechanism for positing a law, whether it is the command of a sovereign as John Austin believed, or whether it has some principle of recognition like H.L.A. Hart believed, but however it is done, they would count it as real law.
In Austin's case, he would say that Adolf Hitler and the Nazi regime were the sovereigns of Germany, and the right to make law belongs to the sovereign. So Hitler and the Nazis had the right to make the laws for their citizens. In fairness to Austin, however, he would also say that if a lower sovereign posited laws contrary to a higher sovereign, the higher law must be obeyed. So if a city violates a state law, the state law is what is ruled in favor of. Or if a state law violated a federal law, federal law rules. Now, since God is the supreme uncommanded commander, whatever God posits as law has to be obeyed, rather than Hitler's laws, which clearly violate God's laws.
What makes legal positivism distinct is that it holds what is called the separability thesis, that is, the thesis that a law need not be just in order to be a true law. For most of western history, under the light of natural law, we believed that an unjust law is no law at all. That part of the essence of law is that it be just (or at least not contrary to justice). This is what Sts. Augustine and Aquinas believed, and so did Martin Luther King Jr. in his Letter from a Birmingham Jail. But legal positivists say nah. We can have a description of law that is not necessarily tied to morality. If it is tied to morality, it is only a contingent fact. All that is necessary is that the proper authorities, be it an uncommanded commander or a rule of recognition, posits the law, and since it is not guaranteed that those commands be moral, it also wouldn't follow with necessity that the laws would be moral as well.
As Martin Luther King Jr. reminds us in his Letter From A Birmingham Jail, what they did was legal. That doesn't seem to be contested. So, if we wish to prosecute Nazis, on what grounds should we do it? Do we want to say that laws do not need to be obeyed? That seems like too much to say. I like it when everyone obeys the law and drives on the right side of the road. It keeps me, and everyone else, safe. So laws do need to be obeyed. Does Nazi law count as real law then? According to legal positivism, yes it does. Legal positivists will disagree on what is the mechanism for positing a law, whether it is the command of a sovereign as John Austin believed, or whether it has some principle of recognition like H.L.A. Hart believed, but however it is done, they would count it as real law.
In Austin's case, he would say that Adolf Hitler and the Nazi regime were the sovereigns of Germany, and the right to make law belongs to the sovereign. So Hitler and the Nazis had the right to make the laws for their citizens. In fairness to Austin, however, he would also say that if a lower sovereign posited laws contrary to a higher sovereign, the higher law must be obeyed. So if a city violates a state law, the state law is what is ruled in favor of. Or if a state law violated a federal law, federal law rules. Now, since God is the supreme uncommanded commander, whatever God posits as law has to be obeyed, rather than Hitler's laws, which clearly violate God's laws.
What makes legal positivism distinct is that it holds what is called the separability thesis, that is, the thesis that a law need not be just in order to be a true law. For most of western history, under the light of natural law, we believed that an unjust law is no law at all. That part of the essence of law is that it be just (or at least not contrary to justice). This is what Sts. Augustine and Aquinas believed, and so did Martin Luther King Jr. in his Letter from a Birmingham Jail. But legal positivists say nah. We can have a description of law that is not necessarily tied to morality. If it is tied to morality, it is only a contingent fact. All that is necessary is that the proper authorities, be it an uncommanded commander or a rule of recognition, posits the law, and since it is not guaranteed that those commands be moral, it also wouldn't follow with necessity that the laws would be moral as well.
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