Legal Positivism

Expressed at a fairly high level of generality, legal positivism is a rather simple doctrine. It tells us that what the law is, is a matter of fact. Despite this apparent simplicity, it has elicited an enormous amount of philosophical debate and controversy. Much of that debate has had to do with the “rather than” clause that seems to be begged by this initial characterization of the position. What positivists are at pains to distinguish law from is “morality” (however that contested concept is itself characterized). Thus, the debate over legal positivism becomes the debate over whether the connection between law and morality is, as philosophers say, contingent or necessary. Granted that there is a lot of moral content in law, the question is whether that content is one in the absence of which law would cease to be law. I do not want to contribute to that debate here. Indeed, it seems to me to be one of those debates about which every possible position has been staked. It is indeed hard to say how the debate between positivists and “natural lawyers” could be moved forward. Instead, I want to consider legal positivism not so much in its contrast with natural law theories, but rather as an epistemological theory about how we come to know what law is. In other words, I am less interested with legal positivism as a theory about what legal facts are, but rather as one which provides us with indications about how we come to know those facts. What do I mean by that? Well, consider H. L. A. Hart’s famous critique of Austin. Austin, it will be remembered, viewed law as being made up of three basic elements: command, obedience, and sanction. Hart, famously, and probably unimpeachably, noted that law just doesn’t function that way. It comes closest to looking like what the Austinian model suggests in the area of criminal law, though even there the picture occludes at least as much as it reveals. Austin’s picture, Hart tells us, does not capture some of the most important things that modern legal systems do, such as empower people to create new kinds of relations among themselves. It tells us nothing about how law remains when the commander changes, or how law changes. And so on. One way of understanding Hart’s critique is to accuse him of a kind of idealism, understood here in the epistemological rather than the normative sense. The accusation can be formulated in the following way: you come to the study of a domain with a preconceived notion of what that domain is, and being insufficiently self-aware of these assumptions, you come to project them onto the world. Hart may be taken as saying that Austin, in his desire to appear hard-nosed against those who would view law as emanating from morality, or from the mind of God, decided in advance of actual observation that law had to do with some people managing to elicit a habit of obedience on the part of other people through their issuing of credible threats of sanction. In so doing, that’s all he saw when he set out to put forward a “fact-based” conception of law. He projected his preconceptions onto the world, rather than looking and seeing. The main point I want to make here, and one that, unless I am mistaken, has been insufficiently explored, is that Hart’s critique of Austin is much more corrosive than Hart himself might have realized. Indeed, it can be turned against Hart himself. Hart famously provided us with something like an epistemic principle in order …