Legal positivism

Legal positivism: the age of codification

End of 18th century

The development of a single code with few laws aimed at creating a system characterized by simplicity and unity. The chaotic situation of jus commune led to new policies of the Enlightenment and the idea of a system in Natural Law Theory.

Codifications

• Prussia (1751 - 1794)
• Austria (1776 - 1811)
• France (1804)

The preliminary book of the project stated: "Judges must decide" (Art. 4). Art. 9 of the preliminary book mentioned, "In the absence of clear laws, the judge decides according to equity in matters of private law. Equity consists in the appeal to natural law and those customs that are accepted wherever positive law is silent." However, the entire preliminary book was cancelled! Everything needed to decide cases can be found in the code: nothing of legal significance exists outside the code. Law equals what’s in the code.

The State undertook a reform to rationalize law according to the systematic model of natural law theory. Positive law becomes rational when codified, so there is no need for natural law. Positive law is sufficient, marking the transition from Natural Law Theory to Legal Positivism.

Legal positivism

• The source of law is authority = law is established by a recognized authority.
• The ideal of law is certainty = law must be objective and predictable.
• The structure of law is a system = complete and coherent.
• The application of law is deduction.

Natural law theory vs legal positivism

What is the law? (Ontology)

• Natural Law Theory: reason
• Legal Positivism: will (of the State)

How is the law known? (Methodology)

• Natural Law Theory: ought to be, prescriptive approach = law as it should be
• Legal Positivism: is, descriptive approach = law as it is

What is justice? (Deontology)

• Natural Law Theory: valid law = just law
• Legal Positivism: valid law ≠ just law

Legal positivism models

• John Austin’s model: Analytical Jurisprudence (1790-1859)
• Hans Kelsen’s model: Pure Theory of Law (1881-1973)
• Herbert L.A. Hart’s model: "The Concept of Law" (1907-1992)

Austin’s model

"Every law or rule […] is a command. Or, rather, laws […], properly so called, are a species of commands. […] The ideas or notions comprehended by the term command are the following:

• A wish or desire conceived by a rational being, that another rational being shall do or forbear.
• An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish (= punishment if the command is not followed).
• An expression or intimation of the wish by words or other signs.

Command, duty, and sanction are inseparably connected terms: each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series.”

The Province of Jurisprudence Determined, (J. Austin, 1832, Lecture 1)

"Laws and other commands are said to proceed from superiors and to bind or oblige inferiors. Superiority is often synonymous with precedence or excellence. But, taken with the meaning wherein I here understand it, the term signifies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one's wishes. It appears, then, that the term superiority (like the terms duty and sanction) is implied by the term command. For superiority is the power of enforcing compliance with a wish: and the expression or intimation of a wish, with the power and the purpose of enforcing it, are the constituent elements of a command.”

The Province of Jurisprudence Determined, (J. Austin, 1832, Lecture 1)

There can’t be a command without a sanction, and duty is connected to commands as well: you can’t have an obligation without a command. COMMAND = expression of will backed by a sanction.