Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?')

Abstract:     
Of all the concepts in use in the legal discourse, "legal positivism" is certainly one of the most polysemous. This is why one currently runs the risk of being misunderstood when making use of it. In particular, there is a sharp distinction between how legal theorists use the concept and how it is most often used by other legal scholars and legal practicioners. This paper attempts to succinctly present a typology of the different uses of the concept in order to facilitate more fruitful discussions. We have classified the different uses of the concept in three broad categories: (1) legal positivism as a methodological approach to the study of law; (2) legal positivism as a theory of law; and (3) legal positivism as an ideology. Each category is further subdivided so as to highlight different currents in the use of the concept within each category.

Note: Downloadable document is in French.

Number of Pages in PDF File: 29

Keywords: Legal theory, legal positivism, legal formalism, legal stasis, monism, Hans Kelsen, H.L.A. Hart, legalism

JEL Classification: K10

Accepted Paper Series